Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 108

ORDER granting 95 Opposed Motion for Leave to Intervene as Party Plaintiffs. The Clerk is instructed to accept Plaintiffs-Intervenors' 95 -1 Complaint in Intervention for filing as of the date of this Order. Defendant shall answer or otherwise respond on or before 7/25/2011. By Magistrate Judge Kristen L. Mix on 7/12/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02103-PAB-KLM
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
IRAQ ABADE, et al.,
Plaintiffs-Intervenors,
v.
JBS USA, LLC, d/b/a JBS Swift & Company,
Defendant.
_____________________________________________________________________
ORDER GRANTING LEAVE TO INTERVENE AS A MATTER OF RIGHT
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on an Opposed Motion for Leave to Intervene as
Party Plaintiffs [Docket No. 95; Filed May 27, 2011] (the “Motion”). Defendant filed a
Response in opposition to the Motion on June 7, 2011 [Docket No. 97]. Given arguments
raised in the Response, and the District Judge’s recent Order addressing motions to
dismiss related to Plaintiffs-Intervenors already in the case, the Court directed the proposed
Intervenors (“Applicants”) to file a Reply which addresses exhaustion and the single filing
rule. See Order [#101] at 1; see also Order [#99] at 30. Applicants filed a Reply on June
21, 2011 [Docket No. 103]. The Motion has been fully briefed and is ripe for resolution.
For the reasons set forth below,

IT IS HEREBY ORDERED that the Motion is GRANTED. Fartun Adan, Khadra
Aden, Asli Ali, Abdi Bulle, Abdikher Bunow, Abdiaziz Elmi, Ahmed Farah, Mohamed Hirsi,
Ubah Hussein, Qadra Ibrahim, Jama Ismail and Fadumo Mohamed are given leave to
intervene in this action. However, given the number of Plaintiffs-Intervenors already in this
case, the caption may remain as set forth above.
The lawsuit pertains to employment discrimination claims asserted against
Defendant by a group of individuals either represented by the Equal Employment
Opportunity Commission (“EEOC”) or Plaintiffs-Intervenors (collectively, the “Claimants”).1
The class-based claims assert allegations of harassment and discriminatory discipline and
discharge on the basis of Claimants’ race (Black), national origin (Somalian) and religion
(Muslim). Complaint [#1] at 3-4; see also Intervention Complaint [#40] at 4; Amended
Intervention Complaint [#61] at 23. The conduct at issue is alleged to have occurred
throughout the duration of Claimants’ employment by Defendant and specifically since
December 2007. See, e.g., Complaint [#1] at 3-5, 7. In addition, Claimants raise issues
pertaining to Defendant’s treatment of them during the Ramadan holy month in September
2008. See, e.g., id. at 5-7. Claimants also contend that the discriminatory practices
continue, although many are now no longer employed by Defendant. See, e.g., id. at 4-5.
Applicants seek to raise similar or identical class-based claims of discrimination or
harassment based on their race (Black), national origin (Somalian) and religion (Muslim).

1

Current Plaintiffs-Intervenors are made up of two groups of Claimants. The first group,
the “Iraq Abade Intervenors,” were granted leave to intervene on November 2, 2010 [Docket No.
16]. Their operative pleading is an Amended Complaint filed on January 10, 2011 [Docket No.
61]. The second group, the “Maryann Abdulle Intervenors,” were granted leave to intervene on
November 29, 2010 [Docket No. 37], and their operative Complaint was accepted for filing on
that day [Docket No. 40].

2

Applicant Abdiaziz Elmi also seeks to raise a retaliation claim related to his opposition to
Defendant’s employment practices at issue here. As such, the proposed Intervenors
contend that their “discrimination claims are inextricably linked to the discrimination claims
asserted by [Claimants].” Motion [#95] at 3.
Pursuant to Fed. R. Civ. P. 24(a)(1), “[o]n timely motion, the court must permit
anyone to intervene who . . . is given an unconditional right to intervene by a federal
statute.” Here, Plaintiffs contend that their Motion is timely and that they are “persons
aggrieved” within the meaning of 42 U.S.C. § 2000e-5(f)(1) and, as such, have an
unconditional statutory right to intervene in the present lawsuit. Defendant acknowledges
that the proposed Complaint in Intervention is nearly identical to the two Complaints filed
earlier by Plaintiffs-Intervenors. See Response [#97] at 3. However, and although
Defendant did not oppose intervention by the two prior groups, Defendant now argues that
Applicants’ Motion is not timely and that Applicants who failed to exhaust are not aggrieved
persons within the meaning of the statute. I reject both contentions.
A.

Timeliness of Motion

While admittedly, there was a nine-month delay between the filing of the lawsuit and
the present Motion, the general length of time is not the prevailing concern. Rather, “[t]he
timeliness of a motion to intervene is assessed ‘in light of all the circumstances, including
the length of time since the applicant knew of his interest in the case, prejudice to the
existing parties, prejudice to the applicant, and the existence of any unusual
circumstances.’” Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001)
(noting that “absolute measures of timeliness should be ignored”) (citations omitted) .

3

Moreover, of the proper timeliness considerations, prejudice to the existing parties is the
prevailing concern and, where none is evident, intervention should likely be permitted. Id.
Finally, “[t]he prejudice prong of the timeliness inquiry ‘measures prejudice caused by the
intervenors’ delay – not by intervention itself.’” Id. at 1251 (citation omitted).
This case has been at a virtual standstill since November 16, 2011, when the parties
jointly agreed to postpone the Scheduling Conference until the Motion to Bifurcate was
resolved [Docket No. 29]. Since that time, the majority of case resources have been spent
briefing the Motion to Bifurcate [Docket No. 28] and other dispositive motions [Docket Nos.
12, 52 & 64]. The Motion to Bifurcate remains pending. As such, permitting intervention
at this time, and while the voluntary stay is in effect, would not appear to have significant
impact on the parties. In other words, given that the train has barely left the train station,
it has not yet gone too far down the tracks to stop and let Applicants get on. See generally
Herrera v. Zavares, No. 09-cv-01229-MSK-KLM, 2010 WL 3853312, at *14 (D. Colo. Sept.
28, 2010) (unpublished decision).
Defendant’s argument that intervention would make an already unwieldy case even
more cumbersome, while arguably true, is beside the point. See Utah Ass’n, 255 F.3d at
1250-51. Assuming that Applicants have a statutory right to intervene, which is addressed
below, Defendant’s alleged prejudice due to the intervention itself is not the focus of the
timeliness consideration. Here, no Scheduling Conference has been conducted, no
Scheduling Order or case deadlines entered, no discovery exchanged, no motions for
summary judgment adjudicated. Because the prejudice put forth by Defendant is “a
function of intervention itself” and the case is “far from ready for final disposition,” the timing

4

of the Motion does not bar its success. Id.
A consideration of the remaining timeliness factors do not prompt a different result.
First, Applicants credibly argue that their lack of legal knowledge, lack of education and
familiarity with the American justice system, and transient nature interfered with their ability
to learn of their interest in the case. Second, the Court credits Applicants’ contention that
forcing them to file a separate lawsuit “alongside this action could raise issues of collateral
estoppel, further stretch judicial resources, and risk conflicting outcomes.” Reply [#103] at
7-8. The Court equates these contentions to prejudice that may be suffered by Applicants
were they not permitted to intervene on the basis of the delay. Finally, there are no
unusual circumstances at play in this case relating to the timing of the Motion that would
otherwise prohibit intervention at this stage of the case. Accordingly, I find that the Motion
is timely within the meaning of Fed. R. Civ. P. 24(a).
B.

Application of Statute

As a preliminary matter, apart from the timeliness issue raised by Defendant in
relation to all Applicants, Defendant does not appear to be arguing that the Applicants who
filed EEOC charges do not have an unconditional statutory right to intervene. Rather,
Defendant’s argument here appears to be limited to those Applicants who did not file EEOC
charges. See Response [#97] at 5 (arguing only that the Applicants “who did not file
administrative charges [have not]. . . establish[ed] they are ‘aggrieved individuals’”).
Specifically, Defendant contends that the single filing rule does not apply to the latter
Applicants to excuse their nonexhaustion and, therefore, they do not have an unconditional
statutory right to intervene. In addition, Defendant argues that the latter Applicants are not

5

“persons aggrieved” within the meaning of the statute upon which they seek to justify their
right to intervene. See 42 U.S.C. § 2000e-5(f)(1); Fed. R. Civ. P. 24(a)(1).
Prior to addressing Defendant’s arguments, the Court directed Applicants to submit
additional information regarding which of them filed charges of discrimination with the
EEOC and which of them did not but are relying on the single filing rule to excuse that
failure. The Court also directed Applicants who filed EEOC charges to detail their claims
and directed each Applicant relying on the single filing rule to “summarize the factual
allegations of his or her claim and attach a properly exhausted charge upon which the
[proposed] [I]ntervenor proposes to piggyback.” Order [#101] at 1 (quoting Order [#99] at
30). Applicants represent that Fartun Adan, Asli Ali, Abdikher Bunow, Abdiaziz Elmi and
Ubah Hussein filed EEOC charges and attached the charges to the Reply [Docket No. 1031]. Reply [#103] at 2. The remaining Applicants, Khadra Aden, Abdi Bulle, Ahmed Farah,
Mohamed Hirsi, Qadra Ibrahim, Jama Ismail and Fadumo Mohamed, seek to piggyback
on Fartun Adan’s EEOC charge [Docket No. 103-1 at 1-5].
Generally, exhaustion of an individual’s discrimination claim with the EEOC is a
jurisdictional prerequisite to suit. EEOC v. Albertson’s LLC, 579 F. Supp. 2d 1342, 1345
(D. Colo. 2008). However, the single filing rule permits “an individual who has not filed an
administrative charge [to] opt-in to a suit filed by any similarly situated plaintiff under certain
conditions.” Thiessen v. GE Capital Corp., 267 F.3d 1095, 1110 (10th Cir. 2001). The
exception addresses situations where strict compliance with jurisdictional prerequisites to
suit are outweighed by the desire to avoid wasteful processing of similar EEOC charges.
“As long as the EEOC and the company are aware of the nature and scope of the

6

allegations, the purposes behind the filing requirement are satisfied and no injustice or
contravention of congressional intent occurs by allowing piggybacking.” Id.
Here, Applicant Adan received a letter of determination from the EEOC on June 14,
2011, noting that “this Charging Party’s allegations are substantially similar to the
allegations brought by previous Charging Parties . . . [and] the Commission finds that there
is reasonable cause to believe that there is a violation of Title VII. . . . This determination
is final.” Adan LOD [#103-1] at 1. In her EEOC charge, Adan alleged that during her
tenure as an employee of Defendant, she “and a class of individuals have been and
continue to be subjected” to discrimination and harassment “based on . . . race, Black,
color, national origin, Somali/African, religion Muslim, and retaliation, in violation of Title
VII.” Adan Charge [#101-1] at 1. Although she did not specify the dates of her employment
in the EEOC charge, the proposed Complaint in Intervention references conduct that began
in December 2007 and continues to date. See Proposed Complaint in Intervention [#95-1]
at 8-17. The Complaint specifically references events that occurred during the Ramadan
holy month in September 2008. See, e.g., id. at 8.
Applicants proposing to piggy back on Adan’s charge all have varying lengths of
employment with Defendant. Indeed, other than Fadumo Mohamed and Qadra Ibrahim,
all are still employed there and, according to the proposed Complaint in Intervention, still
suffer the same racial and religious discrimination addressed in Adan’s complaint and at
issue in the present lawsuit. Mohamed’s employment was terminated in September 2008,
presumably in conjunction with the Ramadan events, and Ibrahim was employed by
Defendant from January to December 2009. See Reply [#103] at 2-3.

7

Reviewing

Applicants’ claims, Adan’s charge and the operative pleadings at issue in this lawsuit, all
assert claims for class-wide discrimination and harassment and support their claims with
nearly identical factual allegations. Although several Applicants began their employment
after the Ramadan events of September 2008 that factor prominently here, the pending
case and Adan charge both reference discriminatory conduct that either occurred during
the course of those Applicants’ employment or is ongoing. “[B]ecause the claims here arise
out of similar discriminatory treatment in the same time frame as those alleged by the
EEOC and [individuals who have exhausted their filing requirements], the single filing rule
[excepts] these Applicants from the jurisdictional requirement that they exhaust their
administrative remedies.” Albertson’s, 579 F. Supp. 2d at 1346.
Moreover, “based on the rationale of the single filing rule, . . . a ‘person aggrieved’
includes a person who has a nearly identical claim to a charging party even if the nearly
identical claimant has not previously filed a charge with the EEOC.” EEOC v. Outback
Steak House of Fla., Inc., 245 F.R.D. 657, 659 (D. Colo. 2007) (quoting 42 U.S.C. § 2000e5(f)(1)). As Defendant concedes, the proposed Complaint in Intervention “is virtually a
carbon copy” of the operative pleadings already at issue in the case. See Response [#97]
at 3. Therefore, consistent with Outback and Albertson’s, the Court finds that at this stage
Applicants appear to be “aggrieved persons, as set forth in 42 U.S.C. § 2000e-5(f)(1), and
thus are given an unconditional right to intervene by federal statute pursuant to Fed. R. Civ.
P. 24(a)(1).” Albertson’s, 579 F. Supp. 2d at 1347 (citing Outback, 245 F.R.D. at 659-60).
IT IS FURTHER ORDERED that the Clerk is instructed to accept PlaintiffsIntervenors’ Complaint in Intervention [Docket No. 95-1] for filing as of the date of this

8

Order. Defendant shall answer or otherwise respond on or before July 25, 2011.

Dated: July 12, 2011
BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

9