Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 13

ORDER that "Defendants' Motion to Transfer EEOCs Subpoena Enforcement Action" (doc. 281 in related CV02-591-PHX-RCB), i.e. EEOC v. Bashas, Inc., 2:09-cv-0209-JAT, is granted; IT IS FURTHER ORDERED that a copy of this order shall be provided to United States District Court Judge James A. Teilborg.. Signed by Judge Robert C Broomfield on 04/15/09. (ESL)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jose Parra, Gonzalo Estrada and Aurelia Martinez Plaintiffs, vs. Bashas' Inc., Defendant.

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No. CV 02-0591 PHX RCB Related Case: CV 09-0209 PHX JAT ORDER

For seven years the court has presided over this action alleging national origin discrimination in violation of Title VII of the 1964 Civil Rights Act as amended ("Title VII"), 42 U.S.C. § 2000e, et seq., and intentional race discrimination in violation of 42 U.S.C. § 1981. On February 2, 2009, this court conducted a That same day, the

status conference, more fully discussed below.

Equal Employment Opportunity Commission ("EEOC") filed an application for an order to show cause why an administrative subpoena should not be issued against respondent, Bashas' Inc., in EEOC v. Bashas', Inc., 2:09-CV-00209-JAT. That enforcement action

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was randomly assigned to the Honorable James A. Teilborg, United States District Court Judge. Currently pending before the court is

a motion by Bashas' to transfer that enforcement action to this court pursuant to LRCiv 42.1(a) (doc. 281). For the reasons set

forth herein, in the exercise of its discretion, the court GRANTS this motion to transfer. Background I. Parra v. Bashas' Assuming familiarity with this action, only those facts bearing directly on the enforcement action will be set forth herein. On September 26, 2001, Jose Parra filed a Charge of Mot. (doc. 281), exh. A thereto

Discrimination with the EEOC. (doc. 281-3) at 2.

In that Charge, Mr. Parra stated his belief

that he had "been discriminated against because of [his] race, Hispanic, and [his] national origin, Mexican-American[,] with respect to pay, assignment and working conditions." Id. After

several other employees filed similar charges, the EEOC issued right-to-sue letters. Id. at 2:19-21. Messrs. Parra and Estrada

then filed this putative class action on April 4, 2002. Thereafter, the EEOC closed all charges. Id. at 2:22.

Discovery ensued during which Bashas' produced wage charts for its various stores for the years 1994 - 2003, inclusive. 2:24-25. Id. at

In April 2004, Bashas' produced what plaintiffs describe

as "massive spreadsheets" comprehensively setting forth a variety of factors primarily related to wages. Id. at 2:25. Thereafter, The

in September 2004, plaintiffs moved for class certification. court granted class certification as to the disparate working

conditions claim, but it denied certification as to the pay claim -2-

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because it found a lack of commonality under Fed. R. Civ. P. 23(a)(2). 29, 2005). Parra v. Bashas', Inc., 2005 WL 6182238 (D.Ariz. Aug. Following plaintiffs' appeal, the Ninth Circuit

reversed this court's "finding that Plaintiffs' originally proposed class lacked commonality" as to the pay claim and "remand[]ed for consideration of the remaining class certification factors in accordance with th[at] opinion." Parra v. Bashas', Inc., 536 F.3d

975, 980 (9th Cir. 2008) (emphasis omitted). In late November 2008, plaintiffs "request[ed] that this Court set the matter for a status conference in order to reopen discovery and set a briefing schedule for plaintiffs' motion for class certification of their Equal Pay Claim." Mot. (doc. 269) at 2:1-3. "since discovery ha[d]

Plaintiffs offered the following rationale:

been closed since April 2004, [they] need[ed] to obtain updated discovery concerning the status of defendants' pay policy and its impact on the putative class." Id. at 2:11-13. Following the

Supreme Court's denial of a petition for certiorari, on February 2, 2009, this court conducted a status conference. During that

conference, plaintiffs reiterated their "need to update the discovery . . . to resubmit the pay claim . . . for class certification." Tr. (doc. 279) at 3:2-4. Finding that "the time

for the discovery sought by Plaintiffs has long since expired[,]" the court denied their request "to reopen discovery for that limited purpose." II. Id. at 14:18-20.

EEOC Enforcement Action Despite closing its files after issuing the right-to-sue

letters to the Parra plaintiffs, the EEOC continued with its own investigation. Shortly after this court denied plaintiff's motion -3-

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for reconsideration on the class certification issue, on May 11, 2006, the EEOC served a subpoena upon Bashas'. thereto (doc. 281-3). See id., exh. B

The EEOC sought, among other things, "all

pay scales in effect for any hourly positions" at Bashas', A.J.'s and Food City, "from 1998 to present." 281-3) at 6, ¶¶ 1-3. Id., exh. B thereto (doc.

The EEOC further sought "all documents or

materials reflecting the racial and national origin composition of hourly employees at" those "stores in . . . Arizona for ll years starting in 1998 to the present[.]" Id., exh. B thereto (doc. 2813) at 6, ¶ 7. Additionally, the EEOC sought the personnel files

for two of the named plaintiffs in the Parra action, among others. Id., exh. B thereto (doc. 281-3) at 6, ¶ 6. Evidently "Bashas' objected to th[at] subpoena on various grounds, including that those individual charges had been closed for more than four years, that the allegations in those charges were now the subject of the Parra litigation, and the EEOC had an opportunity to intervene and elected not to do so." 281) at 4:2-5. Mot. (doc.

On September 12, 2006, the EEOC advised Bashas'

that it was "re-open[ing]" the charges as to the eight individuals who had filed EEOC charges against Bashas' in 2002, including plaintiffs Parra and Estrada. 8. Id., exh. C thereto (doc. 281-3) at

The EEOC further advised Bashas' that once the EEOC "completed

[its] investigations, a determination w[ould] be issued and [Bashas'] w[ould] be . . . notified." Id.

In response, Bashas' took the position that the EEOC "had no authority to `re-open' th[ose] charges because the right-to-sue letters were issued four years earlier and the EEOC was on notice of the Parra litigation and had ample time to intervene[.]" Id. at -4-

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4:7-9.

According to Bashas', "[t]he EEOC never replied, and never Id. at 4:10.

moved to enforce that subpoena."

On May 9, 2007, pursuant to its statutory and regulatory authority, the EEOC filed a "Commissioner's Charge" against Bashas'. Resp. (doc. 283), exh. 1 thereto (doc. 283-2) at 2. In

that Charge, the EEOC states its "belie[f] that [Bashas'] has, since at least May 2004, violated Title VII by discriminating against Hispanics due to their national origin." discriminatory activities "include[] . . . Id. Asserted

failing to pay Hispanic

employees comparable wages to non-Hispanic employees and failing to promote Hispanics []to Management positions." Id. The

Commissioner filed that Charge on behalf of "all persons who have been adversely affected by the . . . unlawful practices[]" just described. Id. The EEOC provided Bashas' with a "Notice" of that See

Charge, and in July 2007, served Bashas' with two subpoenas.

id., exh. 2 thereto (doc. 283-2) at 4); and Resp. (doc. 283) at 2:28 - 3:1 (footnote omitted). According to Bashas', the EEOC "refused" to provide it "with even the most basic information" so that it "could defend itself" against the Commissioner's Charge. Mot. (doc. 281) at 4:19-20.

Nonetheless, Bashas' did provide some information in response to those two subpoenas. After reviewing the information Bashas'

provided, the EEOC deemed it "inadequate[.]" Id., exh. E (doc. 2813) thereto at 12; and exh. F (doc. 281-3) thereto at 15. On

December 6, 2007, the EEOC then "impose[d] additional requirements" on Bashas' for document productions. 281-3) at 12. Id., exh. E thereto (doc.

After reviewing Bashas' "description of [its]

automated records[,] . . . [t]o address [Bashas'] concerns -5-

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regarding over broad data requests[,]" the EEOC " attempted to restrict the data requested as much as possible." thereto (doc. 281-3) at 15. In a March 14, 2008, letter response, Bashas' variously characterized the EEOC's requests as "overly broad[;]" "unduly burdensome[;]" and "ambiguous." at 22. Id., exh. G thereto (doc. 281-3) Id., exh. F

Reiterating that it did not know the basis of the

Commissioner's Charge, Bashas' indicated that it could not determine which documents were relevant or responsive to EEOC's request. Id., exh. G thereto (doc. 281-3) at 21. Expressing

"grave concerns about where any information shared with the EEOC [might] go[,]" Bashas' stated it would "not produce any electronic data or hard copy files until" execution of "an appropriate confidentiality agreement[.]" Id., exh. G thereto (doc. 281-3) at 22. As it had previously, Bashas' stated its "concern that [the

Commissioner's] charge is being used as a vehicle to relitigate the Parra case after an adverse ruling." Id. Seeking "assurances

. . . that the EEOC w[ould] not be used as a tool to circumvent the [Federal] Rules of Civil Procedure[,]" Bashas' enclosed a proposed confidentiality order to "address and resolve th[at] issue." Id.

Apparently the EEOC would not enter into a confidentiality agreement with Bashas'. On May 28, 2008, it issued the subpoena See id.,

which is the subject of the current enforcement action. exh. H thereto at 25-29.

A few weeks later, on June 13, 2008, Id. at 5:21-23;

Bashas' asserted its objections to that subpoena. see also Resp. (doc. 283) at 3:17-19.

The EEOC took no further

action until February 2, 2009, when it filed an "Order to Show Cause Why an Administrative Subpoena Should Not Be Enforced." -6-

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Shortly thereafter, on February 25, 2009, Bashas' filed the present motion to transfer the enforcement action to this court solely on the basis of LRCiv 42.1(a). are twofold. Bashas' reasons for transfer

First, it claims that there is a "significant

overlap" between that enforcement action and the Parra action. Mot. (doc. 281) at 6:3. Second, Bashas' argues that there is a

"risk of conflicting rulings" if the enforcement action is allowed to proceed before another court. Id. at 6:4-5.

Initially missing the mark, the EEOC's first response is that these two actions are "totally unrelated" and thus not appropriate for "consolidation under Fed. R. Civ. P. 42." 1:27 (emphasis added). Resp. (doc. 283) at

Bashas' is seeking a transfer, not

consolidation, however; and the basis for that transfer is a Local Rule - 42.1(a) - not the Federal Rules of Civil Procedure. the EEOC's response is irrelevant insofar as it pertains to consolidation. Turning to LRCiv 42.1, the EEOC again argues that "consolidation," as opposed to transfer, is not proper under that Rule. Presumably the EEOC would make those same arguments against Thus, the court will treat the Thus,

transfer under that Local Rule.

EEOC's consolidation arguments as directed at transfer, rather than at consolidation. The EEOC is taking the position that because a

different time frame is at issue in the enforcement action than in Parra, "different events" are involved. 12. Resp. (doc. 283) at 7:11-

The EEOC adds that the questions of law are not the same

because it is merely seeking to enforce an investigative subpoena. It has not yet made a determination as to the existence of a Title VII violation. Thus, from the EEOC's standpoint, the enforcement -7-

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action and Parra "are unrelated."

Id. at 8:12.

The Parra plaintiffs are "tak[ing] no position" with respect to this transfer motion. at 2:1-2 Discussion LRCiv 42.1(a)(1) provides in relevant part: Whenever two or more cases are pending before different Judges and any party believes that such cases (A) arise from substantially the same transaction or event; (B) involve substantially the same parties or property; . . . (D) calls for determination of substantially the same questions of law; or (E) for any other reason would entail substantial duplication of labor if heard by different Judges, any party may file a motion to transfer the case or cases involved to a single Judge. Before examining those "Statement of Non-Opposition" (doc. 282),

13 LRCiv 42.1(a)(1) (emphasis added).

14 standards vis-a-vis the enforcement action and Parra, it is worth 15 noting that "[d]istrict court judges have broad discretion 16 regarding the assignment or reassignment of cases." Badea v. Cox,

17 931 F.2d 573, 575 (9th Cir. 1991) (internal quotation marks and 18 citations omitted). This "broad discretion" derives from the fact

19 that the Ninth Circuit "do[es] not review independently a district 20 court's determination of the scope and application of local rules 21 . . . because [it] give[s] district courts broad discretion in 22 interpreting, applying, and determining the requirements of their 23 own local rules[.]" Id. (internal quotation marks and citation 24 omitted); see also Guam Sasaki Corp. V. Diana's Inc., 881 F.2d 713, 25 715 (9th Cir. 1989) (emphasis added) (The Ninth Circuit "afford[s] a 26 high degree of deference to local rules and to district court 27 decisions which are designed to delineate local practice and define 28 the local rules.") Based upon this broad discretion, in Badea the -8-

1 Court remanded to the same district judge for further proceedings, 2 despite plaintiff's assertion on appeal that the district court 3 "should have transferred [the] case to another judge who had heard 4 a factually similar case involving different parties." 5 F.3d at 575. Badea, 931

Indeed, so broad is that deference that even where a

6 case had "little in common with the prior case," there was no abuse 7 of discretion in transferring that case to a judge "because it 8 allegedly presented issues similar to those in another case 9 previously heard by him." See Jacobson v. Hughes Aircraft Co., 105 It is against

10 F.3d 1288, 1302 (9th Cir. 1997) (citation omitted).

11 this backdrop which the court is viewing Bashas' transfer motion. 12 As this court stated in Gagan v. Estate of Sharar, 2008 WL

13 2810978 (D.Ariz. July 18, 2008), "[b]y its terms, LRCiv 42.1(a)(1) 14 does not require that each of its subsections be shown before a 15 transfer is proper thereunder." Id. at *2. As in Gagan, though,

16 several subsections of that Rule are met here. 17 There is little doubt that the enforcement action and Parra

18 "arise from substantially the same transaction or event[]" ­ 19 alleged discriminatory conduct by Bashas'. The fact, as the EEOC

20 stresses, that it is not yet "litigating any Title VII violation by 21 Bashas'[,]" does not alter the court's conclusion in this regard. 22 Resp. (doc. 283) at 8:7. Moreover, as Bashas' points out, both

23 actions raise issues concerning employee information which Bashas' 24 has steadfastly maintained is confidential. In fact, in Parra this

25 court has issued not one, but two, confidentiality orders; one of 26 those orders pertains directly to a database which the EEOC is 27 seeking through its enforcement subpoena. Therefore, the first

28 factor under LRCiv 42.1(a)(1) clearly weighs in favor of a transfer -9-

1 here. 2 Both actions involve "substantially" the same parties as well.

3 Bashas' is the defendant in Parra, and the respondent in the 4 enforcement action. Further, although not parties to the

5 enforcement action, some of the Parra plaintiffs are part of the 6 EEOC's focus therein. That is evidenced by the fact that the EEOC

7 is seeking the personnel files of plaintiffs Jose A. Parra and 8 Gonzalo Estrada, among others. 9 (doc. 281-3) at 6. 10 Likewise, the enforcement action and Parra call for a See Mot. (doc. 281), exh. B thereto

11 "determination of substantially the same questions of law" in that 12 the EEOC's allegations of discrimination are, as Bashas' points 13 out, "strikingly similar" to those in Parra. 14 at 2:10. See Reply (doc. 286)

Both pertain to Bashas' alleged discrimination against The fact that the

15 Hispanic employees with respect to pay.

16 Commissioner's Charge also includes a failure to promote allegation 17 does not undermine the essential similarity of these claims. In

18 any event, as this court has previously recognized, "exactness is 19 not the standard" under this Local Rule. 20 2810978, at *3. See Gagan, 2008 WL

So the fact that the legal issues may vary

21 somewhat between Parra and the enforcement action is not a 22 sufficient basis upon which to deny a transfer here. 23 Moreover, just as in Gagan, "subsection (E), the broad, catch-

24 all provision of LRCiv 42.1(a)(1), provides ample justification for 25 transferring" the enforcement action to this court. See id. This

26 court has gained considerable familiarity with Parra, having 27 presided over it for roughly seven years. The court's familiarity

28 is all the more significant because at least on the face of it, it - 10 -

1 appears that in the enforcement action the EEOC is seeking much the 2 same information which has been, if not directly, at least 3 peripherally, the subject of two prior confidentiality orders in 4 Parra. Certainly the interests of judicial economy and the

5 avoidance of duplicative efforts would not be served if the 6 enforcement action were to remain before Judge Teilborg. See In re

7 Marshall, 291 B.R. 855, 859 (Bankr. C.D. Cal. 2003) ("The purpose 8 of assigning related cases to the same judge is to promote judicial 9 efficiency and to avoid the necessity of a new judge learning a 10 complex factual scenario from the beginning.") 11 The assignment factors enumerated in LRCiv 42.1(a)(4), as

12 Bashas' contends, also weigh heavily in favor of transferring the 13 enforcement action to this court. 14 part: 15 16 17 18 19 In determining the Judge to whom the case . . . will be assigned pursuant to subparagraph[] (a)(1) . . . above, the following factors may be considered: (A) whether substantive matters have been considered in a case; (B) which Judge has the most familiarity with the issues involved in the case; (C) whether a case is reasonably viewed as the lead or principal case; or (D) any other factor serving the interest of judicial economy. Given that the enforcement action was fairly That Rule states in relevant

20 LRCiv 42.1(a)(4).

21 recently commenced, Judge Teilborg has issued only scheduling 22 orders; he has yet to consider any substantive matters, although a 23 motion for leave to conduct limited discovery was just filed on 24 April 3, 2009. 25 Not only does the first factor which LRCiv 42.1(a)(4) lists There can be no doubt, as

26 favor transfer, but so does the second.

27 explained herein, that this court has "the most familiarity with 28 the issues involved[,]" especially taking into account its prior - 11 -

1 consideration of confidentially issues which seemingly bear 2 directly upon the enforcement action. Given the manner in which

3 the enforcement action has unfolded, Parra could easily be deemed 4 the "lead or principal case" with respect to that other action. 5 For all of these reasons, the court finds that the "interest of 6 judicial economy" would best be served here by granting Bashas' 7 motion to transfer. 8 9 Accordingly, IT IS ORDERED that "Defendants' Motion to Transfer EEOC's

10 Subpoena Enforcement Action" (doc. 281), i.e. EEOC v. Bashas', 11 Inc., 2:09-cv-00209-JAT, is GRANTED; 12 IT IS FURTHER ORDERED that a copy of this order shall be

13 provided to United States District Court Judge James A. Teilborg. 14 15 16 17 18 19 20 21 22 23 Copies to counsel of record 24 25 26 27 28 - 12 DATED this 15th day of April, 2009.