Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 115

ORDER denying 64 Defendant's Motion to Dismiss Amended Complaint in Intervention (Abade, et al.) pursuant to Docket No. 99 and this order. By Judge Philip A. Brimmer on 8/4/11.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
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

This case involves allegations of national origin, religious, and ethnic
discrimination at a meat packing plant in Greeley, Colorado owned and operated by
JBS USA, LLC (“JBS”). It is before the Court on a response to the Court’s order for
further briefing by Iraq Abade and approximately 103 other employees or former
employees of defendant (collectively “the Abade intervenors”). In its order on several
motions to dismiss [Docket No. 99], the Court directed the Abade intervenors to file
supplemental briefing on the ability of those intervenors who did not file charges of
discrimination to rely on the single filing rule. The Abade intervenors filed this
supplemental briefing [Docket No. 107], JBS responded to it [Docket No. 111], and the
Abade intervenors replied [Docket No. 114].

In its previous order, the Court found that some of the Abade intervenors had
filed properly exhausted claims, on which intervenors who did not file claims could
potentially piggyback. The Court also discussed the parameters of the single filing rule
in the Tenth Circuit. See Docket No. 99 at 22-23. However, the Court was without
sufficient information to determine whether those Abade intervenors who had not filed
claims could, in fact, piggyback on the claims of those who had. The Court noted that
“[a]pplication of the single filing rule requires assessment of the content and time frame
of the claims of both those individuals who filed charges and those who did not,” but
that, in their complaint, the Abade intervenors only provided their names and the dates
of their employment. See id. at 23. Moreover, the Court could not discern which
intervenors had filed charges with the EEOC and which had not. Therefore, the Court
ordered the Abade intervenors to file a brief “summar[zing] the fact[s] underlying” the
claims of those intervenors who did not file charges and attach the properly exhausted
charge upon which each intervenor intended to piggyback. See id. at 30.
The Abade intervenors have now provided the name of each intervenor who did
not file a charge of discrimination, their dates of employment, the names of their shifts,
supervisors and lines, and the properly exhausted charge upon which each intervenor
intends to piggyback. The Court finds that these intervenors are similarly situated to
intervenors with properly exhausted charges, their claims arise out of the same
discriminatory treatment, and allegedly occurred within the same time frame. See
Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004). Moreover, each of
the charges on which the intervenors seek to piggyback gave JBS notice of its class-

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wide nature. See id. Although JBS objects that these intervenors have not provided
sufficient factual details to determine that they suffered sufficiently similar discrimination
as properly exhausted intervenors, the amended Abade complaint [Docket No. 61]
alleges that all of the Abade intervenors were subject to similar or identical
discriminatory treatment and bring similar claims. Based on these allegations, the
Court finds that application of the single filing rule is appropriate and will deny
defendant’s motion to dismiss as to the following intervenors: Abdiwali Abdullahi Abdi,
Ahmed Ahmed, Abdulle Dame, Ambiyo Dude, Ahmed Fiqi, Khalfan Haji, Jamanoor
Hassan, Hawo Hirmoge, Omar Hussein, Halimo Jigis, Mohamed Hassan Mire, Abukar
Mohamed, Halimo Mohamed, Yusuf Omar, Safiyo Sigad, Ali Hussein Karshe,
Mohamednoor Farah, Mahamed Abdullahi, and Mohamud Farah.
JBS’s response to the intervenors’ supplemental briefing [Docket No. 111] raises
the issue of the timeliness of two intervenors’ charges, Deqa Mohammed and Hawo
Jama Salad. The exhaustion of Ms. Salad’s claim was raised in JBS’s briefing on its
original motion to dismiss, in the context of JBS’s argument that there was no valid
charge whatsoever on which the intervenors could piggyback. See Docket No. 79 at 89. The Court did not address Ms. Salad’s charge in its earlier order in light of its finding
that the intervenors could piggyback on charges that were timely but not properly
verified. See Docket No. 99 at 22. As the Court has found that the Abade intervenors
who did not file charges may piggyback on the timely charges laid out in the third
section of the intervenors’ supplemental briefing, see Docket No. 107 at 3-9, the Court
need not reach the timeliness of Ms. Salad’s charge to decide the applicability of the
single filing rule. Nonetheless, given the attention that the parties have paid to this
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charge and to a similar charge from Ms. Mohammed, the Court will address their
timeliness.
Both of these individuals filled out intake questionnaires within 300 days of their
termination. Ms. Salad’s and Ms. Mohammed’s intake questionnaires did not include
explicit requests for the EEOC to act. See Federal Exp. Corp. v. Holowecki, 552 U.S.
389, 404 (2008) (defining a charge as a document that can be reasonably construed to
“request agency action and appropriate relief on [an employees’] behalf.”).
Nonetheless, the EEOC investigator took these questionnaires to be requests for
agency action, drafted charges for these individuals, and sent them charges. See
Docket No. 114-1 at 3 (Declaration of EEOC Investigator Shannon Breen).
Unfortunately, the EEOC did not send Ms. Salad and Ms. Mohammed their charges
until after the expiration of the 300 day deadline. See id. Both Ms. Salad and Ms.
Mohammed signed and returned the charges to the EEOC shortly thereafter. See id.
The intervenors argue that their intake questionnaires functioned as charges so
as to make their claims timely. The Court agrees. Investigator Breen’s declaration
gives context to the intake questionnaires as a step in the EEOC’s investigation of
hundreds of similar complaints and states that the EEOC itself treated the intake
questionnaires as requests for agency action. Although “the EEOC’s subsequent
conduct merely informs [the court’s] determination regarding whether the document can
reasonably be construed as a request for agency action,” the Tenth Circuit has held
that intake questionnaires which, “[s]tanding alone,” do not signal a desire for agency
action, can nonetheless constitute charges based on subsequent events. See

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Semsroth v. City of Wichita, 304 F. App’x 707, 713-14 (10th Cir. 2008). Here, the
intake questionnaires actually caused the EEOC’s action of drafting charges and
sending them to Ms. Salad and Ms. Mohammed, who promptly returned them. These
individuals should not be penalized for the EEOC’s failure to return the charges in a
timely manner. See Jones v. U.P.S., Inc., 502 F.3d 1176, 1185 (10th Cir. 2007) (“[A]ny
deficiency in the EEOC’s performance of its duties should not adversely affect a
plaintiff’s right to sue.”) (quoting Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1321 (11th
Cir. 2001)). Therefore, the claims of Deqa Mohammed and Hawo Jama Salad will not
be dismissed.
For the foregoing reasons, it is
ORDERED that defendant’s Motion to Dismiss Amended Complaint in
Intervention (Abade, et al.) [Docket No. 64] is DENIED pursuant to Docket No. 99 and
this order.

DATED August 4, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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