Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 697

ORDER by Chief Judge Philip A. Brimmer on 8/25/2020, re: 660 Defendant's Motion for Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 1) is DENIED; 661 Defendant's Motion for Partial Judgment on the Pleadings P ursuant to Fed. R. Civ. P. 12(c) (ECF No. 61) is GRANTED IN PARTand DENIED IN PART as set forth in this order; 662 Defendant's Motion for Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 132) is GRANTED IN PART an d DENIED IN PART as set forth in this order; 663 Defendant's Motion for Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 236) is GRANTED IN PART and DENIED IN PART as set forth in this order; 664 Defendant' ;s Motion for Judgment on the Pleadings Pursuant toFed. R. Civ. P. 12(c) (ECF No. 263) is GRANTED IN PART and DENIED IN PART as set forth in this order; 665 Defendant's Motion for Partial Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 504) is GRANTED IN PART and DENIED IN PART as set forth in this order. (sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 10-cv-02103-PAB-KLM
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
IRAQ ABADE, et al.,
Plaintiffs-Intervenors,
and
MARYAN ABDULLE, et al.,
Plaintiffs-Intervenors,
v.
JBS USA, LLC,
d/b/a JBS Swift & Company,
Defendant.

ORDER

This matter is before the Court on defendant JBS USA, LLC d/b/a JBS Swift &
Company (“JBS” or “defendant”)’s motions for judgment on the pleadings [Docket Nos.
660, 662, 663, and 664] and defendant’s motions for partial judgment on the pleadings
[Docket Nos. 661 and 665]. The Equal Opportunity Employment Commission (“EEOC”)
responded to defendant’s first motion, which is directed toward the EEOC’s complaint,

see Docket No. 670, and plaintiffs-intervenors (“intervenors”) responded to the
remaining five motions. Docket No. 671. Defendant replied. See Docket Nos. 680 and
681.
I. BACKGROUND
The EEOC initiated this lawsuit against defendant on August 30, 2010, alleging
unlawful employment practices on the basis of race, national origin, and religion, as
well as raising claims of retaliation. Docket No. 1 at 1-2. Since the filing of the EEOC
complaint, five groups of intervenors have filed complaints in intervention. At present,
the operative intervenor complaints can be found at Docket No. 61 (filed by the “Abade
intervenors”), Docket No. 132 (filed by the “Asad Abdi intervenors”), Docket No. 236
(filed by the “Nafiso Abdi intervenors”), Docket No. 263 (filed by the “Adan
intervenors”), and Docket No. 504 (filed by the “Abdulle intervenors”).1 All intervenors
raise substantially similar allegations, which closely mirror the EEOC’s claims;
specifically, intervenors allege that defendant engaged i n unlawful employment
practices when it discriminated against intervenors based on their race, national origin,
color, or religion, subjected intervenors to harassment based on their race, national
origin, color, or religion, failed to accommodate intervenors’ religious practices, and
retaliated against intervenors for engaging in protected activities. See, e.g., Docket
No. 61 at 1-2.
On August 8, 2011, the Court issued an order bifurcating the case. Docket No.
1

The parties use these classifications to refer to the intervenor groups. See,
e.g., Docket No. 661; Docket No. 671. For purposes of consistency, the Court will use
these classifications, when necessary, in this order.
2

116. Phase I of the trial was to address three issues: (1) whether defendant engaged
in a pattern or practice of unlawfully denying Muslim employees reasonable religious
accommodations to pray and break their Ramadan fast from December 2007 through
July 2011; (2) whether defendant engaged in a pattern or practice of disciplining
employees on the basis of their race, national origin, or religion during Ramadan 2008;
and (3) whether defendant engaged in a pattern or practice of retaliating against a
group of Black, Muslim, Somali employees for engaging in protected activity in
opposition to discrimination during Ramadan 2008. Id. The Court presided over a 16day trial for Phase I from August 7 to August 31, 2017. Docket Nos. 577-592.
On September 24, 2018, the Court issued its Phase I Findings. Docket No. 620.
It found that (1) while defendant had denied Muslim employees a reasonable religious
accommodation to pray during Ramadan (other than in 2009 and 2010), the EEOC had
not made a requisite showing that any employees suffered a materially adverse
employment action as a result of defendant’s policy denying unscheduled prayer
breaks, id. at 82; (2) the EEOC had failed to prove that defendant’s disciplinary actions
during Ramadan 2008 were motivated by a discriminatory animus, id. at 90; and (3) the
EEOC had failed to demonstrate that defendant’s discipline of employees during
Ramadan 2008 was for a retaliatory purpose rather for engaging in a work stoppage.
Id. at 95. The Court dismissed the EEOC’s Phase I pattern or practice claims. Id. The
Court denied the EEOC’s motion for reconsideration or for certification of appeal on
September 30, 2019. Docket No. 653. The Phase II trial, which is set to address the
remaining individual claims, Docket No. 116 at 16, has not yet been schedul ed.
3

On February 14, 2020, defendant filed six motions for full or partial judgment on
the pleadings. Docket Nos. 660, 661, 662, 663, 664, 665. Defendant ar gues that many
of the EEOC’s and intervenors’ claims should be dismissed for failure to state a claim.
See, e.g., Docket No. 662 at 2 (“This Rule 12(c) Motion . . . seeks dismissal of claims
asserted by the Asad Abdi Intervenors” because “none of the Asad Abdi Intervenors
have stated plausible claims for relief.”). Generally, defendant argues that the EEOC’s
and intervenors’ claims should be dismissed for failure to plead individualized
allegations as to each aggrieved party. See, e.g., id. at 6. The EEOC and intervenors
oppose defendant’s motions. Docket No. 670; Docket No. 671.
II. LEGAL STANDARD
The Court reviews a motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) much as it does a motion to dismiss pursuant to Rule 12(b)(6).
See Adams v. Jones, 577 F. App’x 778, 781-82 (10th Cir. 2014) (unpublished) (“We
review a district court’s grant of a motion for judgment on the pleadings de novo, using
the same standard that applies to a Rule 12(b)(6) motion.”) (quoting Park Univ. Enters.,
Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir. 2006)). The Court
must “accept all facts pleaded by the non-moving party as true and grant all reasonable
inferences from the pleadings in favor of the same.” Id. at 782. To prevail, the moving
party must show that “no material issue of fact remains to be resolved and the party is
entitled to judgment as a matter of law.” United States v. Any & All Radio Station
Transmission Equip., 207 F.3d 458, 462 (8th Cir. 2000). A party may raise arguments
that could be made in a motion under Rule 12(b)(6) in a motion under Rule 12(c). Fed.
4

R. Civ. P. 12(h)(2).
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not shown–that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations
respecting all the material elements necessary to sustain a recovery under some viable
legal theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration
marks omitted).
III. ANALYSIS
As an initial matter, the EEOC and intervenors argue that defendant’s motions
are untimely and an improper vehicle to further defendant’s arguments. Docket No.
670 at 5; Docket No. 671 at 6. In the al ternative, they argue that their claims are
5

sufficiently pled, Docket No. 670 at 14; Docket No. 671 at 7, and state that, shoul d the
Court find their complaints deficient, they should be granted leave to amend. Docket
No. 670 at 22; Docket No. 671 at 12.
A. The Propriety of a Rule 12(c) Motion
The EEOC and intervenors argue that defendant’s motions should be denied
because they were filed “[o]ver eight years after the close of the pleadings and over six
years after the dispositive motions deadline.” Docket No. 670 at 5. 2 Defendant
disagrees, asserting that the Rule 12(c) motions are timely because “[t]he Court has
not yet entered any scheduling orders for Phase II, no discovery has occurred during
Phase II, and . . . no [Phase II] trials have been set.” Docket No. 680 at 2.
“After the pleadings are closed – but early enough not to delay trial – a party
may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Ordinarily, a motion
for judgment on the pleadings should be made promptly after the close of the
pleadings.”
5C Charles Alan Wright et al., Fed. Prac. & Proc. § 1367 (3d ed.). A district court has
discretion to deny a Rule 12(c) motion if a party engages in “excessive delay.” Id.
The Court finds that defendant’s motions are timely. While the Court is
cognizant of the fact that the Rule 12(c) motions were filed almost ten years after the
commencement of this case and several years after the filing of the operative
complaints, the Court does not find that the delay in filing these motions is “excessive.”

2

Because intervenors adopt the EEOC’s arguments, see Docket No. 671 at 6,
the Court refers to the EEOC brief in considering these arguments.
6

On August 8, 2011, the Court bifurcated the trial and, in so doing, bifurcated discovery.
Docket No. 116 at 16-17. Phase I discovery was limited to matters related to the Phase
I pattern or practice claims. Id. at 17. The Court ordered that, “[a]fter Phase I, the
parties will commence discovery on pattern or practice claims that were not bifurcated,
on individual claims for punitive and compensatory damages, and on other nonoverlapping discrimination claims.” Id. Consistent this order, defendant waited until
after the end of Phase I to file its motions for judgment on the pleadings.
“Generally, . . . a Rule 12(c) motion is considered timely if it is made early
enough not to delay trial or cause prejudice to the non-movant.” 5C Charles Alan
Wright et al., Fed. Prac. & Proc. § 1367 (3d ed.). The Court finds that neither of these
circumstances is present here. Consideration of defendant’s motions will not delay the
Phase II trial, which has not yet been scheduled. In addition, the EEOC and
intervenors do not argue that they will be prejudiced if the Court rules on defendant’s
motions. Thus, the Court considers defendant’s Rule 12(c) motion timely.
In the alternative, the EEOC and intervenors argue that the Rule 12(c) motions
are an improper mechanism to further defendant’s arguments. Docket No. 670 at 5.
They assert that “Rule 12(c) is not meant to dispose of cases for technical pleading
deficiencies, but only where there are no disputes on material issues of fact.” Id. They
argue that “the Court should . . . defer matters of factual sufficiency until trial or
summary judgment briefing.” Id. at 9. Defendant responds that Rule 12(c) provides a
basis for dismissal of certain claims because a Rule 12(c) motion is analyzed under a
Rule 12(b)(6) standard; thus, if the operative complaints do not state sufficient
7

plausible facts to state a claim for relief, the claims are subject to dismissal. Docket
No. 680 at 6-7.
The Court agrees with defendant insofar as defendant asserts that it is proper
for the Court, at this time, to analyze the sufficiency of the operative complaints and
remaining claims. The question before the Court is not whether there are material
disputes of fact, but whether – taking all of the claimants’ allegations as true – the
operative complaints sufficiently state a claim upon which relief can be granted. See
Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, and A. Benjamin Spencer, 5C
Federal Practice & Procedure Civ. § 1370 (“[A] party moving for a judgment on the
pleadings impliedly admits the truth of its adversary’s allegations and the falsity of its
own assertions that have been denied by that adversary.”); see also id. at § 1368 (“[A]
defendant will not succeed on a motion under Rule 12(c) if there are allegations in the
plaintiff’s pleadings that, if proved, would permit recovery on his claim.”). Thus, the
Court will consider defendant’s motions on the merits and determine whether the
operative complaints would survive a Rule 12(b)(6) challenge.
Despite defendant’s decision to file six separate motions for judgment on the
pleadings, the arguments made across the latter five motions are substantially similar,
if not identical, differing only with respect to which intervenors’ claims are the subject of
defendant’s arguments. Thus, the Court will first address the arguments made with
respect to the EEOC’s complaint; then, the Court will analyze each of the identical
arguments made with respect to the intervenors together, with additional delineation for
each sub-group of intervenors, if necessary.
8

B. The EEOC Complaint
1. Specific, Individualized Allegations
First, defendant argues that the EEOC’s “remaining non-pattern or practice
claims” should be dismissed because its complaint contains “no particularized
allegations demonstrating that any specific individual has a plausible claim for relief.”
Docket No. 660 at 2, 5. Defendant contends that, w hen the EEOC brings claims on
behalf of individuals, the EEOC “stands in the shoes of the individual[s]” and must
“plead facts showing that each individual has a plausible claim for relief.” Id. at 4. To
defendant, this means that the EEOC must allege particularized facts as to each
named, potentially aggrieved individual that would entitle each individual to relief. Id.
The EEOC disagrees, asserting that it is not required to plead specific claimant-byclaimant facts in order to survive a Rule 12(b)(6) motion to dismiss. Docket No. 670 at
10. The EEOC argues that it does not stand in the shoes of the individual claimants or
act as a proxy for the individual claimants, but rather acts to “vindicate the public
interest in preventing employment discrimination.” Id. (quoting Gen. Tel. Co. of the Nw.
v. EEOC, 446 U.S. 318, 326 (1980)). According to the EEOC, all that is required is that
its complaint provide notice of its claims to defendant; the EEOC maintains that it has
done so. Id. Thus, the question before the Court is whether the EEOC must allege
specific factual allegations as to each potentially aggrieved individual in order to
sufficiently state a claim.
There are few cases addressing this issue, and even fewer discussing the issue
at length. Defendant relies on Cazorla v. Koch Foods of Miss., LLC, 2013 WL
9

11328253 (S.D. Miss. Aug. 28, 2013), for the proposition that, in order to survive a Rule
12(b)(6) motion, the EEOC must plead particularized facts sufficient to state a claim for
each individual named in the complaint. See Docket No. 660 at 4-5. In Cazorla, the
court dismissed – with leave to amend – the EEOC’s hostile work environment and
retaliation claims as to 111 aggrieved individuals on the basis that the EEOC had not
pled particularized facts with respect to those individuals. 2013 WL 11328253, at *9.
The court noted that, as to those 111 i ndividuals, “[n]o other information [was] provided
beyond their names” and a cursory allegation that the individuals were “aggrieved by
unlawful discrimination.” Id. at *6. The court concluded that, “absent any particularized
facts, the [complaint] fail[ed] to state a claim for hostile-work environment or retaliation
. . . as to the 111 newly added class members.” Id. at *7 (emphasis in original).
The EEOC relies on E.E.O.C. v. United Parcel Service, Inc., 2013 WL 140604
(N.D. Ill. Jan. 11, 2013) (“UPS”). In UPS, the EEOC’s complaint alleged specific facts
with respect to two identified charging parties, but did not allege particularized facts for
other “unidentified class members,”3 on whose behalf the complaint had also been
3

Defendant argues that UPS and a number of other cases that the EEOC cites
which are not discussed in this order are inapplicable because they analyze the
sufficiency of the complaint brought on behalf of a “class” of employees. See Docket
No 680 at 7-8. The Court notes that there is
some inconsistency in pertinent decisions with regard to the word ‘class.’
[C]ourts sometimes casually describe actions of this type as ‘class’
actions or actions brought by the EEOC on behalf of a ‘class’ of
employees. Such shorthand is a bit misleading. Technically, an EEOC
enforcement action is not a class action brought in accordance with Fed.
R. Civ. P 23.
E.E.O.C. v. Original Honeybaked Ham Co. of Ga., Inc., 918 F. Supp. 2d 1171, 1177 (D.
10

brought. Id. at *1. Specifically, the complaint
identifie[d] the statutes that UPS allegedly violated; the time frame in
which the alleged violations occurred; the names of two presently
identified victims; a general description of the class of aggrieved persons;
the specific claims alleged and their elements as to the charging party
and the class of aggrieved persons; the types of conduct to which the
named claimants and the unidentified class were subjected; and the
remedies being sought.
Id. at *6. The court considered “whether the factual allegations in the first amended
complaint [were] sufficient to raise the possibility of relief above the ‘speculative level’
for the unidentified class members.” Id. at *5. Ultimately, the court found that the
allegations were sufficient to permit a reasonable inference that the defendant had
discriminated against the unnamed individuals. Id. at *6 (citing Iqbal, 556 U.S. at 678).
The court determined that “Iqbal and Twombly do not require plaintiffs, including
EEOC, to plead detailed factual allegations supporting the individual claims of every
potential member of a class.” Id. Noting that “the unique role of the EEOC is such that
courts generally have allowed complaints with ‘class’ allegations comparable to those
asserted [in UPS] to move forward, both pre- and post-Twombly and Iqbal,” the court
concluded that the EEOC was not required to plead individualized facts with respect to
every person with a potential claim against the defendant. Id.

Colo. 2013). In fact, the UPS court acknowledged as much, stating that, “[a]s EEOC is
not subject to the strictures of Fed. R. Civ. P. 23, . . . the other workers are not
members of a ‘class’ as the term is typically understood.” 2013 WL 140604, at *1 n.1.
The UPS court used the term “class” to refer to the unnamed individuals on whose
behalf the EEOC asserted its claims “[a]s a matter of convenience, and in accordance
with the parties’ practice.” Id. Thus, to the extent that defendant argues that the cases
relied upon by plaintiff are inapplicable simply because the decisions refer to a group of
aggrieved individuals as a “class,” the Court finds the argument unpersuasive.
11

The Court finds the outcome in UPS more convincing than that in Cazorla. First,
the Court looks to the purpose of an EEOC enforcement action and the role that the
EEOC serves in filing such a lawsuit. “When the EEOC acts, albeit at the behest of
and for the benefit of specific individuals, it acts also to vindicate the public interest in
preventing employment discrimination.” Gen. Tel. Co., 446 U.S. at 326. The Supreme
Court has indicated that Congress’s purpose in establishing the EEOC’s private-action
enforcement power under the 1972 amendments to Title VII was to “implement the
public interest as well as to bring about more effective enforcement of private rights.”
Id. However, “[t]he amendments did not transfer all private enforcement to the EEOC;”
rather, “[t]he EEOC’s civil suit was intended to supplement, not replace, the private
action.” Id. In an EEOC enforcement action, “the EEOC [does not] bring claims on
behalf of, or stand in the shoes of, individual plaintiffs.” Honeybaked Ham, 918 F.
Supp. 2d at 1177. Rather, “the EEOC brings a claim in its own capacity.” Id.; see also
In re Bemis Co., Inc., 279 F.3d 419, 421 (7th Cir. 2002) (“The EEOC’s primary role is
that of a law enforcement agency.”). Thus, contrary to defendant’s assertion, see
Docket No. 660 at 4, 4 the EEOC does not stand in the shoes of an individual plaintiff
and does not necessarily assume the pleading requirements of an individual upon
4

To support its argument that the EEOC must plead individualized facts,
defendant cites to the Court’s bifurcation order, in which the Court stated that, “[i]n a
§ 706 case, the EEOC stands in the shoes of the individual who filed the charge, and
can only bring claims that the individual could have brought himself.” See Docket No.
660 at 4; see also Docket No. 116 at 8 (Bifurcation Order). The Court used this
language to distinguish a Title VII § 706 claim from a Title VII § 707 claim. Id. The
Court explained that, while § 707 permits the EEOC to bring pattern or practice claims,
section 706 permits the EEOC to sue on behalf of individuals. Id. The Court’s order
makes no finding with respect to the EEOC’s pleading requirements in a § 706 case.
12

whose behalf the lawsuit is brought. See EEOC v. Gen. Elec. Co., 532 F.2d 359, 373
(4th Cir. 1976) (stating that the EEOC’s interest in an enforcement action is “broader (in
scope) than the interests of the charging parties”); see also Gen. Tel. Co., 446 U.S. at
326 (“[T]he EEOC is not merely a proxy for the victims of discrimination.”).
With this in mind, the Court turns to Rule 8 of the Federal Rules of Civil
Procedure. Under this rule, a plaintiff’s complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P.
8(a)(2), which “give[s] the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” McNamara v. Brauchler, 570 F. App’x. 741, 743 (10th
Cir. 2014) (unpublished) (emphasis added). Here, the plaintiff is the EEOC, acting as a
civil enforcement agency to vindicate the public interest in preventing employment
discrimination, not the individual charging parties upon whose behalf the case has
been brought. Thus, the merits of the EEOC’s claims do not depend on the efficacy of
any one charging party’s potential claim. See Honeybaked Ham, 918 F. Supp. 2d at
1177 (“In an enforcement action, the EEOC brings a claim in its own capacity. If it
prevails on its claim, then it can seek a variety of remedies, including a monetary award
for those individuals who were aggrieved by the unlawful conduct.”) (quotation omitted);
see also In re Bemis, 279 F.3d at 421 (“[I]t is merely a detail that [the EEOC] pays over
any monetary relief obtained to the victims of the defendant’s violation rather than
pocketing the money itself and putting them to the bother of suing separately.”).
Moreover, if an EEOC enforcement action is intended to supplement, but not replace, a
private action, Gen. Tel. Co., 446 U.S. at 326, and if “[i]ndividuals can also intervene to
13

assert their own claims” in an EEOC enforcement action, Honeybaked Ham, 918 F.
Supp. 2d at 1176, it would make little sense to hold the EEOC to the individual-specific
pleading standard for which defendant advocates, when each aggrieved individual can
intervene in the action and pursue his or her own private claims. The Court finds that
the EEOC can give defendant fair notice of its claims, and the grounds upon which they
rest, without pleading specific, individualized facts establishing that each charging
party is entitled to relief. See E.E.O.C. v. Thomas Dodge Corp. of N.Y., 524 F. Supp.
2d 227, 234 (E.D.N.Y. 2007) (finding that the EEOC’s allegations, substantially similar
to those at issue here, were sufficient to state a claim because they contained “[a] clear
statement from the plaintiff alleging discrimination by the defendant”).
Unlike Cazorla, where there were no facts alleged as to the 111 individuals in
question besides a conclusory assertion that they were discriminated against, the
EEOC has pled sufficient facts to put defendant on noti ce of its claims. Similar to UPS,
the EEOC has alleged the statutes under which its claims are brought, Docket No. 1 at
2, ¶ 3; the time frame in which the discrimination and harassment allegedly occurred,
see, e.g., id. at 7, ¶ 45; the names of the aggrieved parties, id. at 3, ¶ 8; the bases upon
which the aggrieved parties were allegedly discriminated, id. at 3-4, ¶ 10; the types of
conduct to which the aggrieved parties were subjected, see, e.g., id. at 4-5, ¶¶ 20-21;
and the remedies sought. Id. at 12; UPS, 2013 WL 140604, at *6. The Court finds that
these allegations are sufficient to put defendant on noti ce of the EEOC’s claims. See
E.E.O.C. v. 5042 Holdings Ltd., 2010 WL 148085, at *2 (N.D.W. Va. Jan. 11, 2010)
(holding that complaint sufficiently stated a claim as to unnamed aggrieved individuals
14

where the complaint included “1) the statutes defendant allegedly violated; 2) the time
frames of the alleged violations; 3) the identity of the alleged perpetrators; 4) the name
of one presently identified victim and a description of the class of aggrieved persons; 5)
the specific claims alleged and their elements as to [the charging party] and the class
of aggrieved persons; 6) the types of defendant conduct to which [the charging party]
and the class were subjected; and 7) the remedies being sought”). The Court finds that
the EEOC is not required to plead individualized or particularized facts as to each
charging party in order to state a claim.
Beyond its overarching specificity argument, defendant makes narrower
arguments with respect to the EEOC’s discrimination, religious accommodation, and
retaliation claims. See Docket No. 660 at 6-8. The Court will address these in turn.
2. The EEOC’s Discriminatory Discipline or Discharge Claim
Defendant argues that the EEOC’s discriminatory discipline or discharge claim
should be dismissed because it is “based on the suspensions and terminations that
occurred in connection with the September 2008 walkout” and because it fails to
identify which individuals “were disciplined or discharged for the walkout, or delineate
which individuals were employed only before or after the walkout (and who, therefore,
could have no claims related to the walkout).” Docket No. 660 at 6. Specifically,
defendant points to certain aggrieved individuals who were not discharged in
connection to the 2008 walkout and argues that, because these individuals remained
employed with defendant after the walkout, the EEOC cannot raise a plausible
discrimination claim with respect to these employees. Id. at 6-7.
15

The EEOC responds that its discrimination claim is not limited to the 2008
walkout. Docket No. 670 at 15. It argues that the allegations in the complaint “show[]
the EEOC’s claim extends beyond the termination and discipline of employees during
Ramadan 2008.” Id. The Court agrees with the EEOC that its discrimination claim is
not as narrow as defendant suggests; reading the allegations in the light most
favorable to the EEOC, the EEOC has sufficiently alleged discrimination extending
beyond the 2008 walkout. See, e.g., Docket No. 1 at 11, ¶ 70 (“Since at least
September 2008, Defendant has violated and continues to violate . . . Title VII”)
(emphasis added); id., ¶ 72 (“Somali employees were directed not to come to work
and/or were not allowed to return to their shift because of their religion, national origin,
and/or because they had requested or needed a religious accommodation.”); id. at 5,
¶ 23 (“Somali and Muslim employees were discriminatorily denied bathroom breaks.”);
id., ¶ 25 (“Somali and Muslim employees were disciplined and continue to be
disciplined more harshly than non-Somali and non-Muslim employees.”). Thus, the
Court rejects defendant’s argument that, because certain individuals remained
employed with defendant after the walkout, the EEOC fails to state a claim as to those
individuals.
With respect to defendant’s argument that the discriminatory discipline or
discharge claim must be dismissed because “the EEOC has not asserted any
individualized allegations establishing a plausible claim for any particular Charging
Party or aggrieved individual,” Docket No. 660 at 7 (emphasis omitted), the Court has
already determined that the EEOC is not required to plead such particularized facts in
16

order to state a claim. For these reasons, the Court rejects defendant’s arguments with
respect to the EEOC’s discriminatory discipline or discharge claim. See EEOC v.
FedEx Ground Package Sys., Inc., 158 F. Supp. 3d 393, 405 (W.D. Pa. 2016) (finding
that the EEOC had sufficiently pled a disability discrimination case on behalf of
charging parties and other unnamed individuals when the EEOC alleged, generally,
that the aggrieved individuals were qualified and disabled under the ADA, that they
were employed by or applicants for employment by defendant, and that they suffer ed
injuries when defendant failed to accommodate their disabilities).
3. The EEOC’s Religious Accommodation Claim
Next, defendant argues that the EEOC’s claim that the charging parties were
denied a religious accommodation (“religious accommodation claim”) should be
dismissed. Docket No. 660 at 7. It invokes the Court’s Phase I Findings of Fact and
Conclusions of Law (“Phase I Findings”), in which the Court determined that
“freestanding” religious accommodation claims – i.e., claims based solely on the denial
of a religious accommodation without an accompanying adverse action – are not viable
claims. See id.; see also Docket No. 620 at 57 (Phase I Findings). Defendant asserts
that the EEOC fails to state a religious accommodation claim because its complaint
“fails to allege which Charging Parties and aggrieved individuals experienced which, if
any, adverse employment actions.” Docket No. 660 at 8. The EEOC asserts that the
Court can reconsider its previous order, see Docket No. 670 at 18, and, in the
alternative, argues that it adequately pled its religious accommodation claim. Id. at 19.
“‘[A]n employment discrimination plaintiff need not plead a prima facie case of
17

discrimination’ to survive a motion to dismiss.” Johnston v. Hunter Douglas Window
Fashions, Inc., 715 F. App’x 827, 830 (10th Cir. 2017) (unpublished) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)). “The prima facie case under
McDonnell Douglas” in employment discrimination cases “is an evidentiary standard,
not a pleading requirement.” Swierkiewicz, 534 U.S. at 510. To survive a Rule 12(b)(6)
motion, a plaintiff “must satisfy only the simple requirements of Rule 8(a).” Id. at 513.
With that said, “[w]hile the 12(b)(6) standard does not require that [the plaintiff]
establish a prima facie case in [the] complaint, the elements of each alleged cause of
action help to determine whether [the plaintiff] has set forth a plausible claim.” Khalik,
671 F.3d at 1192.
Defendant acknowledges that the EEOC need not plead a prima facie case of its
religious accommodation claim, but notes that “the Court dismissed the EEOC’s Phase
I pattern or practice accommodation claim because the EEOC failed to tie any alleged
failures to accommodate to any adverse employment actions,” which defendant asserts
“rais[es] a substantial question as to whether [the EEOC] will fare any better in Phase
II.” Docket No. 681 at 8. 5
The Court disagrees with defendant. Finding that the EEOC had not met its
burden of proof after trial is an entirely different, and much higher, standard than
determining whether the EEOC has sufficiently pled a religious accommodation claim.

5

This argument is made in defendant’s reply to intervenors’ response. See
Docket No. 681 at 8. However, in defendant’s reply to the EEOC’s response,
defendant incorporates its response to intervenors’ same argument made by the
EEOC. See Docket No. 680 at 9-10.
18

Moreover, the Court declines the EEOC’s invitation to reconsider its Phase I Findings
of Fact and Conclusions of Law, as it has already denied the EEOC’s motion to
reconsider. See Docket No. 653. Instead, the Court finds that its Phase I Findings do
not impact the EEOC’s pleading standard. As the Court set out in a previous order,
“Abercrombie6 simply restates and interprets the preexisting statutory provisions of Title
VII . . ., and does not alter the pleading requirements for such claims in a way relevant
to this case.” Docket No. 501 at 2. Thus, the question before the Court remains
whether the EEOC has put defendant on notice of the scope of its religious
accommodation claim.
“[A] plaintiff may establish [a prima facie religious accommodation case] by
showing that (1) she had a bona fide religious belief that conflicted with an employment
requirement; and (2) her need for an accommodation was a motivating factor in the
employer’s decision to take an adverse employment action against her.” EEOC v.
Jetstream Ground Servs., Inc., 134 F. Supp. 3d 1298, 1318 (D. Colo. 2015). In its
complaint, the EEOC alleges that defendant failed to accommodate the charging
parties’ religious practices or beliefs by denying them opportunities to pray during work
and denying their requests to move their scheduled breaks to align with their required
prayer times. Docket No. 1 at 4, ¶¶ 15-18; id. at 5-6, ¶¶ 29-31. The EEOC also alleges
that the charging parties were retaliated against for requesting religious
accommodations. Id. at 8, ¶ 46.
6

The Court relied on E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.
2028, 2033 (2015), in finding that “freestanding” religious accommodation claims are
not viable. See Docket No. 620 at 57.
19

The Court finds that the EEOC has stated a religious accommodation claim.
This is not a case where defendant is unable to determine the scope or nature of the
EEOC’s claim. See, e.g., Pretlow v. James, 2014 WL 3778832, at *3 (W.D. Okla. July
31, 2014) (finding that the plaintiff had failed to state a religious accommodation claim
where the complaint “contain[ed] no facts that would support any of the[] elements of a
religious accommodation claim”). Instead, the EEOC alleges that the charging parties
had a bona fide religious belief, that they requested an accommodation in accordance
with that belief, and that they were, at the very least, denied the accommodation. This
is sufficient to state a religious accommodation claim.
4. The EEOC’s Retaliation and Hostile Work Environment Claims
Finally, defendant argues that the EEOC’s retaliation claim and its hostile work
environment claim must be dismissed for failure to allege particularized facts for each
aggrieved individual. Docket No. 660 at 8-10. For the reasons set forth above, the
EEOC is not required to plead particularized facts with respect to each charging party.
The Court finds that the EEOC’s allegations sufficiently put defendant on notice as to
the scope of these claims. For example, the EEOC alleges that the Muslim charging
parties had requested a religious accommodation to pray and that they were retaliated
against for making this request. Docket No. 1 at 5-6, ¶¶ 29-32. It describes the time
frame from which these claims arise and sets out the statute under which the claim is
brought. Id. at 9, ¶ 56. In addition, the EEOC alleges that Black, Somali, and Muslim
employees were subjected to harassment from management, supervisors, and coworkers, describes the type of harassment that these employees faced, id. at 4-5,
20

¶¶ 19-22, and describes the time frame in which this harassment occurred. Id. at 10,
¶ 61. The EEOC alleges the harassment was based on these individuals’ race,
national original, and religion. Id. at 4, ¶ 19. The Court finds that the EEOC has
sufficiently pled retaliation and hostile work environment claims. See 5042 Holdings,
2010 WL 148085, at *2.
Because the Court finds that the EEOC has adequately pled the claims that
defendant challenges, defendant’s motion for judgment on the pleadings with respect to
the EEOC’s complaint [Docket No. 660] will be denied.

C. The Intervenor Complaints
1. Class Action Allegations
First, defendant argues that the intervenors’ pattern or practice claims should be
dismissed because they are not asserting class action claims. Docket No. 662 at 3. 7
Specifically, defendant argues that “[o]nly the government or a certified class may
assert pattern or practice claims.” Id. (citing Daniels v. UPS, 701 F.3d 620, 632 (10th
Cir. 2012)). In their response, intervenors state that, while they maintain that evidence
of defendant’s alleged pattern or practice of unlawful behavior “remain[s] available to
[intervenors] to prove their claims” and that defendant’s allegedly discriminatory and
retaliatory conduct is relevant to the intervenors’ individual claims, they “agree to drop
these claims.” Docket No. 671 at 7. The Court construes this as a concession of

7

Citations to identical arguments made across defendant’s latter five motions
will be made to Docket No. 662 unless otherwise specified.
21

dismissal of these claims. Thus, to the extent that defendant seeks dismissal of the
intervenors’ pattern or practice claims, the motions for judgment on the pleadings are
granted.
2. Religious Discrimination Under Section 1981
Next, defendant argues that the Abade, Asad Abdi, Nafiso Abdi, and Adan
intervenors’ claims under 42 U.S.C. § 1981 must be dismissed “because § 1981 does
not cover religious-based discrimination or retaliation.” Docket No. 662 at 4; see also
Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir. 1979) (“Section 1981
does not apply to sex or religious discrimination.”). Thus, defendant asserts that, to the
extent that intervenors’ claims are based on alleged religious discrimination, they must
be dismissed. Docket No. 662 at 4. Intervenors respond that they “do not disagree
with the Defendant’s assertion that Section 1981’s prohibition on race and national
origin discrimination does not extend to the protected class of religion.” Docket No.
671 at 7. However, they state that they “do not assert any claims of religious
discrimination pursuant to Section 1981, nor do they intend to.” Id. Because
intervenors have clarified that they do not raise claims of religious discrimination under
§ 1981,8 the Court finds that defendant’s argument is moot.
3. Intervenors’ Discriminatory Discipline or Discharge Claims
Defendant argues that intervenors’ discriminatory discipline or discharge claims
8

The Abade, Nafiso Abdi, and Adan intervenors seek to amend their complaints
to “clarify any ambiguity with regard to the particular statutes under which [they] are
alleging religious discrimination.” Docket No. 671 at 6-7; see also Docket Nos. 672,
673, and 678. These intervenors’ motions to amend are currently referred to
Magistrate Judge Kristen L. Mix. See Docket Nos. 674, 675, and 679.
22

should be dismissed. Docket No. 662 at 6. Specifically, defendant argues that the
Asad Abdi, Nafiso Abdi, and Adan intervenors’ discriminatory discipline or discharge
claims should be dismissed because their complaints fail to specify which intervenors
were discharged or disciplined. See, e.g., id. In addition, defendant argues that
fifteen9 of the Abade intervenors’ discrimination claims should be dismissed because
there are no allegations of any discharge or discipline as to these fifteen intervenors.
Docket No. 661 at 10. Finally, defendant argues that (1) four of the Abdulle
intervenors’ discrimination claims should be dismissed because, according to
defendant, their claims are based on consequences of the 2008 walkout and there are
no allegations that these four Abdulle intervenors participated in the walkout, Docket
No. 665 at 7; (2) two of the Abdulle intervenors’ discrimination claims must be limited to
just discriminatory discipline rather than discriminatory discharge, id.; (3) two of the
Abdulle intervenors have failed to state a discrimination claim based on retaliation for
requesting a religious accommodation, id. at 6; and (4) one of the Abdulle intervenors
failed to state a discrimination claim based on engaging in protected activity. Id. at 7-8.
In response, intervenors assert that their discriminatory discipline or discharge
claims are not limited to the 2008 walkout. Docket No. 671 at 7-8. Rather, they state
that their “claims cover the entirety of each of their individual periods of employment,

9

The Court’s ruling is limited to the claims of those fifteen Abade intervenors
expressly referenced in defendant’s motion. See Docket No. 661 at 8 (asserting that
intervenors Abdirizak Abdi, Magamed Abdullahi, Mahad Abdulle, Fardowsa Ali,
Mohamud Farah, Mohamednoor Farah, Muno Farah, Sadiyo Hussein, Ibrahim Iman, Ali
Hussein Karshe, Idris Ali Mohamed, Mohamed A. Mohamed, Qorane Omar, Ahmed
Osman, and Hashim Yusek have failed to state a claim).
23

within the statutory limitations period, whether or not the employment concluded in or
around September 2008,” id. at 8, and that “[t]here is a great deal of actionable
misconduct that the Defendant engaged i n after that time period that is at issue in this
action, and has been set forth in well-pled allegations.” Id. at 9. In support, they cite to
allegations in the Abdulle intervenors’ complaint alleging discriminatory discipline or
discharge based on circumstances unrelated to the 2008 walkout. See id.; see also
Docket No. 504 at 10-20, ¶¶ 56-60. Intervenors, however, do not direct the Court to
any specific allegations in the Abade, Asad Abdi, Nafiso Abdi, or Adan intervenors’
complaints that specifically set forth the discriminatory discipline or discharge suffered
by each of those intervenors. See Docket No. 671 at 9.
a. Abade, Asad Abdi, Nafiso Abdi, and Adan Intervenors
“Under the McDonnell Douglas test, a prima facie case of discrimination requires
that (1) Plaintiff belong to a protected class; (2) he suffered adverse employment
action; and (3) the adverse action occurred under circumstances giving rise to an
inference of discrimination.” Steele v. Stallion Rockies Ltd, 106 F. Supp. 3d 1205,
1216-17 (D. Colo. 2015). “While the 12(b)(6) standard does not require that [a
claimant] establish a prima facie case in her complaint, the elements of each alleged
cause of action help to determine whether [the claimant] has set forth a plausible
claim.” Khalik, 671 F.3d at 1192. To sufficiently state a claim of discriminatory
discipline or discharge under Rule 12(b)(6), intervenors must plead facts demonstrating
that each intervenor suffered from a discriminatory discipline or discharge. See In re
Syngenta AG MIR 162 Corn Litig., 131 F. Supp. 3d 1177, 1215-16 (D. Kan. 2015) (“[I]n
24

the absence of a specific allegation that each and every plaintiff[]” suffered an injury,
general allegations that all plaintiffs were injured are insufficient to state a plausible
claim for relief); Carey v. Lawton Corr. Facility, 2008 WL 200053, at *3 (W.D. Okla. Jan.
24, 2008) (a complaint must “alleg[e] facts which, if true, would entitle each Plaintiff to
relief”) (emphasis added).
While intervenors need not establish a prima facie case at this stage of the
litigation, the prima facie elements of a discrimination case are relevant to the Court’s
inquiry as to whether intervenors have stated a plausible claim. Khalik, 671 F.3d at
1192. Here, an essential element of a discriminatory discipline or discharge claim is
that the claimant was, in fact, disciplined or discharged. See Kloke v. Buckley Indus.,
Inc., 1996 WL 363032, at *9 (D. Kan. June 28, 1996) (discussing elements of
discrimination claim under both Title VII and § 1981). Intervenors’ complaints fail to
allege that intervenors were. First, the intervenors cite to no allegations in the Abade,
Asad Abdi, Nafiso Abdi, or Adan intervenors’ complaints setting forth facts
demonstrating that each individual intervenor suffered discriminatory discipline or
discharge. See generally Docket No. 671. “It is not incumbent on the Court to review”
these four complaints “to determine whether some allegation might make out” a
discriminatory discharge or discipline claim as to each individual intervenor. Airquip,
Inc. v. HomeAdvisor, Inc., 16-cv-01849-PAB-KLM, 2017 WL 4222618, at *5 (D. Colo.
Sept. 21, 2017). Regardless, these intervenors’ complaints do not indicate which
individuals were discharged and which received lesser forms of discipline, and they
provide no details as to the type of non-discharge discipline intervenors experienced, if
25

any. See, e.g., Docket No. 263 at 7, ¶ 32 (alleging that “Plaintiffs/Intervenors were
disciplined and continue to be disciplined more harshly than non-Somali and nonMuslim employees, or were disciplined for conduct that others were not,” but providing
no details as to which intervenors were disciplined or what type of discipline
intervenors allegedly received).
The key difference between the EEOC’s complaint and intervenors’ complaints is
that the EEOC’s complaint gives defendant sufficient notice of “what the [EEOC’s] claim
is and the grounds upon which it rests.” McNamara, 570 F. App’x. at 743. In contrast,
intervenors here have not specifically alleged any elements of a discriminatory
discipline or discharge claim as to any intervenor, so as to determine whether any
intervenor can state a plausible claim for relief. General claims of discipline or
discharge are insufficient. See Khalik, 671 F.3d at 1193 (“Plaintiff’s general assertions
of discrimination and retaliation, without any details whatsoever of events leading up to
her termination, are insufficient to survive a motion to dismiss.”). The Court finds that
the Abade, Asad Abdi, Nafiso Abdi, and Adan intervenors have not stated a plausible
discrimination claim. To the extent that defendant seeks dismissal of the these
intervenors’ discriminatory discipline or discharge claims, defendant’s motion is
granted.
b. Abdulle Intervenors
Defendant raises a number of arguments advocating for the dismissal of some
Abdulle intervenors’ discrimination claims, both in the context of their discrimination
arguments and their retaliation arguments. See generally Docket No. 665. First,
26

defendant argues that Rahma Arr, Abdirashid Hussein, Faysal Ibrahim, and Abdirasak
Issa’s fifth and tenth claims, which are discrimination claims, should be dismissed for
failure to allege that they participated in or were discharged for the 2008 walkout. Id. at
7. However, as explained above, the Court agrees with intervenors that their
discrimination claims are not limited to conduct associated with the 2008 walkout, as
the Abdulle intervenors’ complaint alleges that each of the challenged intervenors
experienced discriminatory discipline or discharge unrelated to the 2008 walkout. See
Docket No. 504 at 10-20, ¶¶ 55-60. In fact, defendant appears to concede in its reply
that these allegations state a plausible disciplinary discharge or discipline claim for the
Abdulle intervenors. See Docket No. 681 at 5 (“The problem is that – with the
exception of the Abdulle Intervenors’ Amended Complaint . . . – none of [the] purported
‘actionable misconduct’ is identified or alleged by the Intervenors in their complaints.”);
see also id. at n.3 (describing the Abdulle complaint as “the only complaint filed by the
Intervenors containing any significant individualized allegations”). Thus, to the extent
that defendant seeks to dismiss these four Abdulle intervenors’ discriminatory discipline
or discharge claims on the basis that they failed to allege discipline or discharge for the
2008 walkout, see Docket No. 665 at 7, its motion is denied.10
In addition, defendant argues – threaded within its retaliation arguments – that

10

Additionally, defendant asserts that intervenors Maryan Abdulle’s and Raawi
Sahal’s fifth and tenth claims should be dismissed “to the extent [that these claims] are
based on being discharged in connection with the walkout.” Docket No. 665 at 7.
However, intervenors’ fifth and tenth claims are not limited to discharge from the
walkout. See Docket No. 504 at 23-24, 28-29. Thus, the Court sees no reason to grant
the piecemeal dismissal that defendant seeks.
27

Faysal Ibrahim’s fifth claim and Rahma Arr’s fifth and tenth claims – all discrimination
claims – should be dismissed for failure to state a claim. Id. at 6, 8. Defendant asserts
that these intervenors’ “fifth claim[] for relief alleges that JBS disciplined or discharged
the Intervenors in retaliation for requesting religious accommodations” and argues that,
because these intervenors did not allege that they requested a religious
accommodation, or “tie any alleged adverse actions to any requests for
accommodations,” their fifth claims for relief should be dismissed. Id. at 6-7. With
respect to Ms. Arr’s tenth claim, a discrimination claim, defendant asserts that this claim
should be dismissed for failure to allege that Ms. Arr “complained of discrimination or
harassment, or engaged in any other protected activity” or suffered retaliation in
conjunction with that protected activity. Id. at 8. Defendant makes this same argument
with respect to Ms. Arr’s fifth claim. See id.
The Court is not convinced by defendant’s arguments. With respect to
defendant’s argument that Ms. Arr’s and Mr. Ibraham’s fifth claims for relief must be
dismissed for failure to allege that they requested a religious accommodation, the Court
notes that the claim is not limited to alleged discipline or discharge based on
requesting a religious accommodation; rather, the complaint alleges that these
individuals were “disciplin[ed] or discharg[ed] . . . because of their race (Black), color
(Black), national origin (Somali), religion (Muslim), and/or in retaliation for requesting
religious accommodation and/or in retaliation for engaging in protected activity by
complaining about discrimination and/or harassment.” Docket No. 504 at 24, ¶ 87. Mr.
Ibrahim alleges he was treated worse than his non-Black, non-African, non-Muslim
28

coworkers. See, e.g., id. at 13-14, ¶ 58. In addition, Ms. Arr alleges that she was
subject to disparate discipline. See, e.g., id. at 10-11, ¶ 56. Thus, any failure to allege
that Ms. Arr or Mr. Ibrahim did not request a religious accommodation is not fatal to
these intervenors’ fifth claim for relief.
Defendant’s alternative argument with respect to Ms. Arr’s fifth and tenth claims
suffers from the same deficiency. The Abdulle intervenors’ tenth claim for relief
contains substantially similar language to their fifth claim for relief, alleging that
intervenors were disciplined or discharged based on their race, color, and/or in
retaliation for engaging in the protected activity of complaining about discrimination or
harassment. See id. at 28, ¶ 121. Thus, the fact that Ms. Arr did not allege that she
complained of harassment or discrimination does not necessitate dismissal of her fifth
or tenth claims. To the extent that defendant seeks dismissal of these claims, its
motion is denied.
4. Intervenors’ Retaliation Claims
a. Asad Abdi, Nafiso Abdi, and Adan Intervenors
To state a claim of retaliation under Title VII, a plaintiff must allege that (1) the
plaintiff “engaged in protected activity;” (2) the plaintiff “suffered an adverse
employment action;” and (3) “there is a causal connection between [the] protected
activity and the adverse employment action.” Davis v. United Sch. Dist. 500, 750 F.3d
1168, 1170 (10th Cir. 2014). These elements similarly apply to a retaliation claim
under § 1981. See Muller v. Pearson-Chavez, 2017 WL 4534840, at *3 (D.N.M. Feb. 7,
2017); see also Allstate Sweeping, LLC v. Black, 706 F.3d 1261, 1265 (10th Cir. 2013)
29

(quoting Brown v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir. 2009) (“[E]lements of § 1981
claim ‘are generally identical’ to those for a Title VII claim”). Defendant argues that the
Asad Abdi, Nafiso Abdi, and Adan intervenors have failed to sufficiently allege “which –
if any – of the Intervenors . . . engaged in protected activity,” and have not adequately
alleged “any facts demonstrating a potential connection between [protected activity]
and a materially adverse employment action.” Docket No. 662 at 9. Intervenors
respond that they “have provided individual examples in support of these allegations in
their pleadings.” Docket No. 671 at 10-11. However, intervenors’ argument suffers
from the same deficiencies as their earlier arguments, namely, that the intervenors cite
only to the Abdulle intervenors’ complaint for examples of individual allegations. See
id. Intervenors do not cite to any allegations in the Asad Abdi, Nafiso Abdi, or Adan
intervenors’ complaints plausibly alleging that these intervenors engaged in a protected
activity. Thus, to the extent that defendant seeks dismissal of the Asad Abdi, Nafiso
Abdi, or Adan intervenors’ retaliation claims, defendant’s motion will be granted.
b. Abdulle Intervenors
Defendant argues that Mr. Ibrahim’s third claim for relief, and Ms. Arr’s third,
sixth, and seventh claims for relief, which raise claims of retaliation, should be
dismissed. Docket No. 665 at 6-8. Specifically, defendant asserts that Ms. Arr and Mr.
Ibrahim “fail to state a plausible claim for retaliation based on requesting religious
accommodations” because intervenors do not “allege they requested religious
accommodations, and their allegations do not tie any alleged adverse actions to any
requests for accommodations.” Id. at 6-7. Intervenors respond that, generally, the
30

Abdulle intervenors sufficiently pled that “they were subjected to harassment, including
racial[,] invective[,] and verbal and physical abuse, and disciplined or discharged in
retaliation for requesting religious accommodations or complaining about unlawful
treatment by co-workers and supervisors.” Docket No. 671 at 10.
Unlike Ms. Arr’s and Mr. Ibrahim’s discrimination claims, these intervenors’
retaliation claims are limited to specific alleged bases of retaliation. Specifically, their
third claim alleges retaliation for requesting a religious accommodation, Docket No. 504
at 22, and their sixth and seventh claims allege retaliation for the protected activity of
complaining about discrimination or harassment. Id. at 25. With respect to Mr.
Ibrahim, intervenors allege that Mr. Ibrahim was retaliated against for complaining of
discrimination, id. at 14-15, ¶ 58k, but do not allege that Mr. Ibrahim requested a
religious accommodation or that he was retaliated against for requesting such
accommodation. See id. at 13, ¶ 58. This missing allegation is an essential element of
a retaliation claim under Title VII or § 1981. Davis, 750 F.3d at 1170. Thus,
intervenors’ allegations are presently insufficient to state a claim for Mr. Ibrahim’s third
claim for relief – retaliation for requesting a religious accommodation.
With respect to Ms. Arr, while the Abdulle intervenors’ complaint alleges that she
suffered disparate treatment as compared to her non-Somali coworkers, see Docket
No. 504 at 10-11, ¶ 56, the complaint does not allege that Ms. Arr engaged in protected
activity, such as complaining about this disparate treatment or requesting a religious
accommodation. See id. Thus, the allegations are insufficient to state a retaliation
claim. Davis, 750 F.3d at 1170. The Court finds that the Abdulle intervenors have not

31

sufficiently stated a claim of retaliation as to Mr. Ibrahim’s third claim or to Ms. Arr’s
third, sixth, or seventh claims. Thus, to the extent that defendant seeks dismissal of
these claims, defendant’s motion is granted.
c. Abade Intervenors
Defendant argues that fifteen Abade intervenors’ third and sixth claims for relief
– two retaliation claims11 – should be dismissed.12 Docket No. 661 at 11. Defendant
asserts that, for these fifteen intervenors, “the Complaint is devoid of any allegation that
they engaged in protected activity or suffered any adverse action.” Id. As set forth
above, intervenors have not pointed to any specific citations from the Abade
intervenors’ complaint demonstrating that these intervenors have alleged that they
engaged in protected activity or suffered any adverse action, see Docket No. 671 at 1011, and the Court will not parse through the Abade intervenors’ complaint to determine
whether each of these fifteen intervenors have alleged that he or she engaged in a
protected activity or suffered an adverse employment action. Airquip, 2017 WL
4222618, at *5. The Court will grant defendant’s motion and dismiss the fifteen Abade
intervenors’ third and sixth claims for relief.
5. Intervenors’ Hostile Work Environment Claims
Defendant seeks to dismiss the Abade, Asad Abdi, Nafiso Abdi, and Adan

11

The Abade intervenors’ third claim alleges retaliation for requesting religious
accommodations, see Docket No. 61 at 30, while the sixth claim alleges retaliation for
complaining of discrimination or harassment. Id. at 33.
12

Defendant also argues that the Abade intervenors’ ninth claim should be
dismissed. Docket No. 661 at 11. However, this claim – a discriminatory discharge or
discipline claim – has already been addressed and dismissed by the Court.
32

intervenors’ hostile work environment claims on the basis that these intervenors have
failed to make individualized allegations stating a plausible claim for relief. Docket No.
662 at 9. Specifically, defendant asserts that “[t]here is nothing in the [complaints] . . .
that indicates which of [the] harassment allegations may – or may not – apply to any
specific Intervenor and his or her claims.” Id. at 10. Intervenors assert that their
operative complaints set forth allegations of “racial[,] invective, verbal and physical
abuse, and disparate treatment by Defendant,” citing the Abdulle intervenors’ complaint
in support. Docket No. 671 at 12. However, defendant does not seek to di smiss any of
the Adulle intervenors’ hostile work environment claims. See Docket No. 665; see also
Docket No. 681 at 7.
“The elements of a hostile work environment claim are: (1) the plaintiff is a
member of a protected group; (2) the plaintiff was subjected to unwelcome harassment;
(3) the harassment was based on the protected characteristic . . .; and (4) the
harassment was sufficiently severe or pervasive to alter a term, condition, or privilege
of the plaintiff’s employment and created an abusive working environment.” Asebedo v.
Kan. State Univ., 559 F. App’x 668, 670 (10th Cir. 2014) (unpublished). The Tenth
Circuit has determined that, because “one of the critical inquires in a hostile
environment claim must be the environment,” the general atmosphere of a work
environment is relevant to a plaintiff’s hostile work environment claim. See Hicks v.
Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) (“Evidence of a general work
atmosphere . . . – as well as evidence of specific hostility directed toward the plaintiff –
is an important factor in evaluating the [hostile work environment] claim.”).

33

Intervenors assert that “there is no requirement that the Intervenors show that
they suffered an independent harm in order to make their hostile work environment
claims actionable.” Docket No. 671 at 11. However, such an assertion contravenes
the requirement that a plaintiff demonstrate that “the harassment was sufficiently
severe or pervasive to alter a term, condition, or privilege of the plaintiff’s employment
and created an abusive working environment.” Asebedo, 559 F. App’x at 670.13
While intervenors have not cited any allegations in any of their complaints
demonstrating that they have sufficiently pled hostile work environment claims, the
Court has nevertheless reviewed the intervenors’ complaints and finds that they are
insufficient to state a claim. Generally, the complaints allege facts that could support a
claim that defendant’s harassment was pervasive or abusive. See, e.g., Docket No.
236 at 5, ¶ 16 (alleging that intervenors were repeatedly denied the opportunity to pray
and ridiculed for praying); id. at 6, ¶ 21 (alleging that intervenors were repeatedly
targeted with racial slurs and epithets by their co-workers, as well as defendant’s
management). However, the complaints lack allegations that this harassment altered a
term, condition, or privilege of the intervenors’ employment. For example, the Abade,
13

Moreover, the case that intervenors rely on for this proposition, Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993), does not concern the specific pleading
requirements of a hostile work environment claim. Rather, in Harris, the Supreme
Court clarified that a plaintiff need not suffer a tangible psychological injury to assert a
hostile work environment claim. Id. at 21. In the opinion, the Supreme Court indicated
that, “even without regard to these tangible effects, the very fact that the discriminatory
conduct was so severe or pervasive that it created a work environment abusive to
employees because of their race, gender, religion, or national origin offends Title VII’s
broad rule of workplace equality.” Id. at 22. Thus, intervenors have not cited any
authority indicating that a plaintiff need not allege that a term, condition, or privilege of
plaintiff’s employment was altered as a result of a hostile work environment.
34

Asad Abdi, and Nafiso Abdi intervenors’ complaints each allege that “[t]he harassment
of Plaintiffs/Intervenors was sufficiently severe and/or pervasive to alter the terms and
conditions of their employment,” Docket No. 61 at 31, ¶ 174; Docket No. 132 a t 15,
¶ 52; Docket No. 236 at 13, ¶ 69, but none of the com plaints allege any specific facts
detailing how the terms and conditions of these intervenors’ employment were altered
by the alleged harassment. “[A] formulaic recitation of the elements of a cause of
action” is insufficient to state a claim under Rule 12(b)(6), Twombly, 550 U.S. at 555,
and “a plaintiff must offer specific factual allegations to support each claim.” Lawrence
v. Sch. Dist. No. 1, 11-cv-02789-PAB-KMT, 2013 WL 791436, at *2 (D. Colo. Mar. 4,
2013); see also Owens v. City of Barnsdall, 2014 WL 2197798, at *4 (N.D. Okla. May
27, 2014) (“Plaintiff fails to provide any specific information regarding the sex
discrimination she allegedly experienced or how such discrimination was sufficiently
severe or pervasive to alter the conditions of her employment. Such general
allegations do not state a plausible claim for a hostile work environment.”). Thus, to the
extent defendant argues that the Abade, Asad Abdi, Nafiso Abdi, and Adan intervenors
have failed to sufficiently allege a hostile work environment claim, defendant’s motion
will be granted.
6. Intervenors’ Religious Accommodation Claims
a. Abade, Asad Abdi, Nafiso Abdi, and Adan Intervenors
Defendant argues that the Asad Abdi, Nafiso Abdi, and Adan intervenors, and
fifteen of the Abade intervenors, see Docket No. 661 at 9, have failed to state a
religious accommodation claim. Docket No. 662 at 7. Defendant’s argument is
35

identical to its argument with respect to the EEOC’s religious accommodation claim,
asserting that, based on the Court’s earlier ruling that “freestanding” religious
accommodation claims are not viable, intervenors have failed to state a claim because
they have not identified which intervenors were subject to which actionable conduct.
See id.; see also Docket No. 620 at 57. Defendant asserts that, because these
intervenors have not alleged which intervenors experienced an adverse action, and
have not tied any alleged adverse actions to requests for a religious accommodation,
intervenors have not alleged legally sufficient religious accommodation claims. Docket
No. 662 at 8. Intervenors respond that, “even under the holdings of the Phase I order, .
. . Intervenors could make a showing that specific aggrieved individuals were denied
religious accommodation, and suffered some additional adverse action.” Docket No.
671 at 9.14 However, intervenors do not cite to any allegations, in any of their
complaints, to support their argument. See id.
The Court is not convinced by intervenors’ assertion that they “could” make a
showing that some specific individuals were denied a religious accommodation and
suffered an accompanying adverse action. A Rule 12(b)(6) motion analyzes whether a
plaintiff has made a showing that he or she is entitled to relief, not whether there is
some abstract possibility that the plaintiff could, at some future point, make such a
showing. See E.E.O.C. v. Pitre, Inc., 908 F. Supp. 2d 1165, 1171 (D.N.M. 2012) (“In

14

Intervenors also “reiterate that [the Phase I Findings] remain subject to
revision under Fed. R. Civ. P. 54(b).” Docket No. 671 at 9. Given that the Court has
already denied the EEOC’s motion for reconsideration, see Docket No. 653, the Court
declines to revise its earlier order.
36

considering Rule 12(b)(6) motions, courts must look within the four corners of the
complaint, accept all well-pleaded factual allegations as true, and determine if the
plaintiff is plausibly entitled to relief.”); see also Iqbal, 556 U.S. at 679 (“[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is
entitled to relief.’”) (quoting Fed. R. Civ. P. 8(a)(2)). Similar to the Court’s analysis on
intervenors’ other claims, the Court finds that these intervenors have failed to state a
religious accommodation claim, as they have not identified which intervenors were
denied a religious accommodation and subject to an accompanying adverse action.
See, e.g., Docket No. 61 at 29-30, ¶¶ 162-166; Docket No. 132 at 13, ¶¶ 40-44; Docket
No. 236 at 12, ¶¶ 57-61; Docket No. 263 at 11, ¶¶ 57-61. Thus, the Court finds that it
is appropriate to dismiss these intervenors’ religious accommodation claims.
b. Abdulle Intervenors
Defendant asserts that two Abdulle intervenors – Ms. Arr and Mr. Ibrahim – have
failed to state a religious accommodation claim. Docket No. 665 at 8. Defendant
argues that neither intervenor alleged that he or she requested a religious
accommodation so as to state a claim for an improper denial of a religious
accommodation. Id. at 6. Intervenors do not respond to defendant’s argument. Docket
No. 671 at 9. However, requesting an accommodation is not a necessary element of a
religious accommodation claim. Jetstream, 134 F. Supp. 3d at 1317. “A request for [a
religious] accommodation, or the employer’s certainty that [a religious] practice
[requiring an accommodation] exists, may make it easier to infer motive, but is not a
37

necessary condition of liability.” Abercrombie., 135 S. Ct. at 2033. For this reason, the
Court rejects defendant’s argument that Ms. Arr and Mr. Ibrahim were required to allege
that they requested a religious accommodation in order to state a religious
accommodation claim and will deny defendant’s motion to the extent it seeks dismissal
of these claims. See Docket No. 665 at 6.
7. The Motions to Amend
Concurrently with filing their responses to defendants’ motions, the Abade, Asad
Abdi, and Nafiso Abdi intervenors filed motions to amend their complaints. See Docket
Nos. 672, 673, and 678. The motions seek leave to amend in the event that the Court
found any of these intervenors’ claims insufficient. See, e.g., Docket No. 672 at 7
(“Intervenors respectfully request that, if the Court does not deny Defendant’s Rule
12(c) Motions[,] . . . the Court grant Intervenors leave to file the proposed Second
Amended Complaint.”) (emphasis added). The motions to amend are currently referred
to Magistrate Judge Kristen L. Mix. Docket Nos. 674, 675, and 679. Di smissal of
intervenors’ claims will be without prejudice, subject to Magistrate Judge Mix’s ruling on
the motions to amend.15
15

The Adan intervenors and Adbdulle intervenors have not filed motions to
amend. See Docket No. 671 at 13 (“the Abade and Abdi intervenors are
simultaneously moving to amend their respective complaints to add additional detail
regarding each of the Intervenors.”). While the Asad Abdi intervenors’ motion to
amend is signed by counsel for both the Adan intervenors and the Abdulle intervenors,
Docket No. 673 at 7, the proposed amended complaint does not appear to incorporate
claims from the Adan or Abdulle intervenors. See Docket No. 673-2. However, that
these intervenors have not filed a motion to amend does not necessitate dismissal of
their claims with prejudice, and intervenors assert that they should be granted leave to
amend should the Court find their complaints insufficient. See Docket No. 671 at 12.
While a motion cannot be made in a response, see D.C.COLO.LCivR 7.1(d), the
38

IV. CONCLUSION
For these reasons, it is
ORDERED that Defendant’s Motion for Judgment on the Pleadings Pursuant to
Fed. R. Civ. P. 12(c) (ECF No. 1) [Docket No. 660] is DENIED. It is further
ORDERED that Defendant’s Motion for Partial Judgment on the Pleadings
Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 61) [Docket No. 661] is GRANTED IN PART
and DENIED IN PART as set forth in this order. It is further
ORDERED that Defendant’s Motion for Judgment on the Pleadings Pursuant to
Fed. R. Civ. P. 12(c) (ECF No. 132) [Docket No. 662] is GRANTED IN PART and
DENIED IN PART as set forth in this order. It is further
ORDERED that Defendant’s Motion for Judgment on the Pleadings Pursuant to
Fed. R. Civ. P. 12(c) (ECF No. 236) [Docket No. 663] is GRANTED IN PART and
DENIED IN PART as set forth in this order. It is further
ORDERED that Defendant’s Motion for Judgment on the Pleadings Pursuant to
Fed. R. Civ. P. 12(c) (ECF No. 263) [Docket No. 664] is GRANTED IN PART and
DENIED IN PART as set forth in this order. It is further
ORDERED that Defendant’s Motion for Partial Judgment on the Pleadings
Pursuant to Fed. R. Civ. P. 12(c) (ECF No. 504) [Docket No. 665] is GRANTED IN
PART and DENIED IN PART as set forth in this order. It is further

Court’s dismissal of the Adan and Abdulle intervenors’ claims will also be without
prejudice so as to permit these intervenors to file a motion to amend.
39

ORDERED that intervenors’ pattern or practice claims – the Abade intervenors’
first claim for relief, the Asad Abdi intervenors’ first claim for relief, the Nafiso Abdi
intervenors’ first claim for relief, the Adan intervenors’ first claim for relief, and the
Abdulle intervenors’ first claim for relief – are DISMISSED with prejudice.16 It is further
ORDERED that, insofar as intervenors’ § 1981 discrimination claims – the
Abade intervenors’ seventh claim for relief, the Asad Abdi intervenors’ seventh claim for
relief, the Nafiso Abdi intervenors’ seventh claim for relief, the Adan intervenors’
seventh claim for relief, and the Abdulle intervenors’ eighth claim for relief – can be
read to assert a pattern or practice claim, the claims are DISMISSED with prejudice. It
is further
ORDERED that intervenors’ discrimination claims – the Abade intervenors’17
fifth, seventh, and ninth claims for relief, the Asad Abdi intervenors’ fifth, seventh, and
ninth claims for relief, the Nafiso Abdi intervenors’ fifth, seventh, and ninth claims for
relief, and the Adan intervenors’ fifth, seventh, and ninth claims for relief – are
dismissed without prejudice.18 It is further

16

Intervenors agree that they “will not assert [their pattern or practice claims] in
any of their proposed Amended Complaints.” Docket No. 671 at 7.
17

This dismissal is to the fifteen Abade intervenors expressly referenced in
defendant’s motion only. See Docket No. 661 at 8.
18

As a general matter, defendant seeks piecemeal dismissal of the majority of
the Abade and Abdulle intervenors’ claims. See, e.g., Docket No. 661 at 11-12; Docket
No. 665 at 8-9. Given the number of intervenors and claims in this case and the
already complex nature of this case, the Court declines to carve intervenors’ claims into
viable and not-viable pieces to comply with defendant’s request. The Court will only
grant the relief expressly requested and supported in defendant’s motions.
40

ORDERED that intervenors’ retaliation claims – the Abade intervenors’19 third
and sixth claims for relief, the Asad Abdi intervenors’ third and sixth claims for relief,
the Nafiso Abdi intervenors’ third and sixth claims for relief, the Adan intervenors’ third
and sixth claims for relief, Ms. Arr’s third, sixth, and seventh claims for relief, and Mr.
Ibrahim’s third claim for relief – are dismissed without prejudice. It is further
ORDERED that intervenors’ hostile work environment claims – the Abade
intervenors’ fourth and eighth claims for relief, the Asad Abdi intervenors’ fourth and
eighth claims for relief, the Nafiso Abdi intervenors’ fourth and eighth claims for relief,
and the Adan intervenors’ fourth and eighth claims for relief – are dismissed without
prejudice. It is further
ORDERED that intervenors’ religious accommodation claims – the Abade
intervenors’20 second claim for relief, the Asad Abdi intervenors’ second claim for relief,
the Nafiso Abdi intervenors’ second claim for relief, the Adan intervenors’ second claim
for relief – are dismissed without prejudice.
DATED August 25, 2020.
BY THE COURT:

____________________________
PHILIP A. BRIMMER
Chief United States District Judge

19

This dismissal is to the fifteen Abade intervenors expressly referenced in
defendant’s motion only. See Docket No. 661 at 8.
20

This dismissal is to the fifteen Abade intervenors expressly referenced in
defendant’s motion only. See Docket No. 661 at 8.
41