Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 99

ORDER ON MOTIONS TO DISMISS. Defendant's 12 Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), 12(b)(7) and 19 is denied. Defendant's 52 Motion to Dismiss Complaint in Intervention is denied in part and granted in part. The Abdulle intervenors' claims based on discrete acts of discrimination occurring more than 300 days before they filed their charges with the EEOC are dismissed. The Abdulle intervenors remaining claims are not dismissed. Defendant's 64 Motion to Dismiss Amended Complaint in Intervention (Abade, et al.) is denied in part and taken under advisement in part. On or before 6/30/2011, the Abade intervenors shall file a brief no longer than ten pages detailing which intervenors did not fi le charges. For each of these intervenors, the brief shall summarize the factual allegations underlying his or her claim and attach a properly exhausted charge upon which the intervenor proposes to piggyback. By Judge Philip A. Brimmer on 6/9/11.(mnf, )

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,
and
MARYAN ABDULLE, et al.,
Plaintiffs-Intervenors,
v.
JBS USA, LLC,
d/b/a JBS Swift & Company,
Defendant.

ORDER ON MOTIONS TO DISMISS

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 defendant’s motions to dismiss
[Docket Nos. 12, 52 and 64] the Equal Employment Opportunity Commission’s
(“EEOC”) complaint [Docket No. 1] and two complaints in intervention [Docket Nos. 61,
40]. The motions are fully briefed and ripe for disposition. Jurisdiction over this case is
premised upon plaintiffs’ invocation of federal questions pursuant to 28 U.S.C. § 1331.

I. BACKGROUND
On August 30, 2010, the EEOC filed a complaint [Docket No. 1] against
defendant alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. On
November 2, 2010, Iraq Abade and approximately 103 other employees or former
employees of defendant (collectively “the Abade intervenors”) filed a complaint in
intervention [Docket No. 17], which was later amended [Docket No. 61]. On November
29, 2010, Maryan Abdulle and five others (collectively “the Abdulle intervenors”) also
filed a complaint in intervention [Docket No. 40]. The EEOC, the Abade intervenors,
and the Abdulle intervenors assert similar claims. Each brings a claim for pattern and
practice of discriminatory treatment, failure to accommodate religion, retaliation for
requesting religious accommodation, hostile work environment, and discriminatory
discipline and discharge. The intervenors also bring claims for retaliation for engaging
in protected activity, discriminatory treatment because of race, hostile work
environment/harassment because of race, and discriminatory discipline and discharge
because of race. All of these claims arise out of allegations of employees’ treatment at
defendant’s plant in Greeley, Colorado.
Plaintiffs allege that defendant harassed black Somali Muslim employees and
denied them the ability to pray as required by their religion. Employees at defendant’s
Greeley plant are exclusively represented by United Food and Commercial Workers
Local #7 (“the Union”). According to the complaints, although Muslims are required by
their religion to pray five times a day, Muslim employees at the plant were denied
requests to pray during their bathroom breaks and were harassed when they attempted
2

to pray during scheduled breaks. These employees were subject to harassing
comments based on their race, national origin and/or religion, and managers and other
employees regularly threw blood, meat, and bones at them. The plant’s restrooms bore
anti-black, anti-Somali, and anti-Muslim graffiti and these employees were subject to
offensive comments regarding their race, national origin, and/or religion. This group of
employees was disciplined more than other employees and, when they complained
about this discrimination, defendant did not correct the hostile work environment.
The complaints also allege that tensions with black Somali Muslim employees at
the plant came to a head in 2008 during Ramadan, a Muslim holy month during which
Muslims fast. A large group of Muslim employees came to the office of the plant’s
superintendent to request that their meal break be moved from 9:15 p.m. to 7:30 p.m.
These employees wanted the change in order to break their fast within fifteen minutes
of sunset, as required by their religion. Plant management allowed Muslim employees
to break at 7:30 p.m., fifteen minutes after sunset, for two shifts on September 3 and 4,
2008.
On September 5, 2008, management allegedly moved the break to 8:00 p.m. At
7:30 p.m. on September 5, 2008, management stood at all of the exits and blocked
Muslim employees from leaving. Defendant also shut off the water fountains at the
plant or marked them with red tags (usually used to mark spoiled meat), preventing
Muslim employees from taking a drink of water after their day of fasting or washing up
as required before their prayers. At 8:00 p.m., management allowed the Muslim
employees to take their break and ordered them outside the facility. When the
employees attempted to re-enter after their break, they were told they could not return
3

to work. On Monday, September 8, 2008, defendant informed the Union that
employees who left the plant on Friday evening had engaged in an “unauthorized work
stoppage” and would be placed on an indefinite suspension. On September 9, 2008,
defendant decided to allow employees who left the facility to return to work with a final
written warning, provided they returned to work that day. But it did not contact each of
the employees to tell them they were required to return that day and subsequently
terminated all of the Muslim employees who did not return to work on Tuesday,
September 9, 2008.
II. ANALYSIS
Defendant seeks the dismissal of all three operative complaints. It argues that
the entire case should be dismissed for failure to join the Union, a necessary party. It
also argues that the EEOC’s complaint should be dismissed because the EEOC failed
to conciliate with defendant in good faith. Finally, it argues that each group of
intervenors has failed to administratively exhaust its claims and, thus, their complaints
should be dismissed as well.
A. Failure to Join the Union
1. Standard of Review
Federal Rule of Civil Procedure 12(b)(7) allows for dismissal for failure to join a
person under Rule 19. Rule 19 requires a two step analysis before dismissing a claim
for failure to join an indispensable person. See Davis v. United States, 343 F.3d 1282,
1288 (10th Cir. 2003). First, the court must determine whether the absent person is
“necessary” or, under the language in the newly revised Rule 19, “required.” See id.;

4

Fed. R. Civ. P. 19(a).1 A person is “required” to be joined under Rule 19 if:
(A) in that person’s absence, the court cannot accord complete relief
among existing parties; or
(B) that person claims an interest relating to the subject of the action and
is so situated that disposing of the action in the person’s absence may: (i)
as a practical matter impair or impede the person’s ability to protect the
interest; or (ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations because
of the interest.
Fed. R. Civ. P. 19(a)(1). A required person must be joined as a party if joinder is
feasible. Id. If a required person cannot be joined, the court moves to the second step,
determining “whether, in equity and good conscience, the action should proceed among
the existing parties or should be dismissed.” Fed. R. Civ. P. 19(b). In deciding whether
to proceed without the required person, the court should consider:
(1) the extent to which a judgment rendered in the person’s absence
might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by: (A)
protective provisions in the judgment; (B) shaping the relief; or (C) other
measures;
(3) whether a judgment rendered in the person’s absence would be
adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.
Fed. R. Civ. P. 19(b). The party seeking dismissal for failure to join bears the burden of
persuasion. Lenon v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1372 (10th Cir. 1998).

1

Rule 19 was amended in 2007 for stylistic purposes only. See Republic of
Philippines v. Pimentel, 553 U.S. 851, 855-56 (2008); Advisory Committee Notes on the
2007 Amendment to Fed. R. Civ. P. 19 (2007). The previous rule referred to
“necessary” persons in 19(a), which are now called “required” persons, and
“indispensable” persons in 19(b), persons the rule now generally refers to as those
required to be joined if feasible but who cannot be joined. See id.
5

2. Analysis
Defendant argues that all three complaints should be dismissed because none of
the plaintiffs have joined the Union as a party. Dismissal for failure to join requires the
Court to find (1) that the Union is a required party under Federal Rule of Civil Procedure
19(a), (2) that joinder of the Union is infeasible, and (3) that dismissal is appropriate.
The Court will address each step of this analysis in turn.
Defendant advances a series of arguments for why the Union is a required
person, which all focus on the nature of the plaintiffs’ requested relief. The relief
plaintiffs seek are varieties of equitable relief, including an injunction prohibiting
defendant from engaging in discrimination; an order requiring defendant to implement
policies accommodating Somali and Muslim employees; and backpay and
reinstatement and/or front pay for terminated employees. Plaintiffs additionally seek
compensatory relief and punitive damages. Defendant first argues that this relief
cannot be afforded absent the Union, thereby making the Union a required party under
Rule 19(a)(1)(A), and second, that affording this relief will subject defendant to
inconsistent obligations, thereby making the Union a required party under Rule
19(a)(1)(B)(ii).
The Court finds that it can accord the relief plaintiffs seek even in the Union’s
absence and, therefore, the Union is not required under Rule 19(a)(1)(A). Plaintiffs
have not alleged any wrongdoing by the Union. See Potter v. Continental Trailways,
Inc., 480 F. Supp. 207, 213 (D. Colo. 1979) (finding unions not required under Rule 19
where plaintiff did not allege any violations by the union or seek relief against the
union); Atkinson v. Owens-Illinois, Inc., 1975 WL 160 at *8 (N.D. Ga. Mar. 31, 1975)
6

(union not required where plaintiffs did not allege union facilitated discrimination). Nor
do plaintiffs challenge the collective bargaining agreement (“CBA”) reached by
defendant and the Union. Compare Ware v. City of Buffalo, 186 F. Supp. 2d 324, 33031 (W.D.N.Y. 2001) (union was necessary party where it was signatory to drug policy
challenged by plaintiff); Forsberg v. Pac. Nw. Bell Tel., 623 F. Supp. 117, 122 (D. Or.
1985) (granting motion to join union where wage rates alleged by plaintiff to be
discriminatory were negotiated and agreed to by the union in the CBA); McCooe v.
Town of Manchester, 101 F.R.D. 339, 341 (D. Conn. 1984) (granting joinder where
plaintiffs challenged a provision negotiated for in the CBA). Moreover, the relief
requested by plaintiffs will not significantly impact the CBA, which provides for flexible
scheduling of break times and prohibits discrimination. See Docket No. 12-2 at 16
(allowing for a fifteen minute rest period approximately halfway through the first portion
of an employee’s shift and a thirty minute lunch period approximately halfway through
the scheduled workday); id. at 11-12 (prohibiting discrimination based on, inter alia,
“race, color, religion” and requiring reasonable accommodation of religious tenets); see
also Charles Alan Wright et al., Federal Practice & Procedure § 1620 (2010) (noting
that unions should be joined if feasible where an adjudication “might have a significant
impact on the collective-bargaining agreement”).
Finally, the mere fact that plaintiffs seek reinstatement or, alternatively, front pay
for terminated employees does not make the Union necessary to accord that relief,
even assuming that such relief would violate the provisions of the CBA as to seniority.
See Hayden v. Freightcar Amer., Inc., 2008 WL 375762 at *15 (W. D. Pa. 2008)

7

(reasoning that such relief could be accorded without absent union members because
CBA seniority system would not trump court order requiring reinstatement of
employees). Moreover, it is not clear that reinstatement of these employees would
violate the CBA, as the CBA only allows for loss of seniority where an employee is
discharged for cause. See Docket No. 12-2 at 7; see also Docket No. 84-1 at 7 (EEOC
v. JBS USA, Case No. 8:10CV318 (D. Neb. Mar. 3, 2011)).
Nor is the Union a required person under Rule 19(a)(1)(B). As a threshold
matter, plaintiffs argue that Rule 19(a)(1)(B) is irrelevant here because it only applies
when the absent person “claims an interest relating to the subject of the action” and the
Union has not expressed an interest in the case. See Fed. R. Civ. P. 19(a)(1)(B).
Defendant responds by pointing to media accounts wherein Union representatives
commented on the events underlying this case and the fact that Greeley plant
employees have filed related grievances with the Union. Defendant does not articulate
precisely the interest it believes the Union has in the subject matter of this case, but,
based on the Union’s statements to the media, the Union appears to claim an interest in
participating in the negotiations that will set the plant’s break schedules and determine
the appropriate accommodation of Muslim workers. See Docket No. 45 at 8-9.
Presumably, the Union’s desire to participate in these negotiations comes from its
interests in ensuring that all of its workers are protected and provided adequate breaks
and religious accommodation as required by the CBA. These interests are not patently
frivolous; therefore, Rule 19(a)(1)(B) is applicable here. See Citizen Potawatomi Nation
v. Norton, 248 F.3d 993, 998-99 (10th Cir. 2001) (absent parties have an interest under

8

19(a)(1)(B) where they “can . . . validly claim an interest in the subject of the action”);
compare Potter, 480 F. Supp. at 212-13 (concluding unions had no interest in action
where plaintiff sought reinstatement after illegal discrimination because “the unions
have no interest in maintaining seniority lists which are incorrect as a result of illegal
exclusions”).
The Court, however, does not find that allowing this suit to go forward without the
Union impermissibly risks impairing the Union’s ability to protect its interests. See Fed.
R. Civ. P. 19(a)(1)(B)(i). The Union’s interest in obtaining religious accommodation for
Muslim employees as required by the CBA is not impeded by this suit; rather, it is
furthered by it. See Davis ex rel. Davis v. United States, 343 F.3d 1282, 1291-92 (10th
Cir. 2003) (“We note that in some cases the interests of the absent person are so
aligned with those of one or more parties that the absent person’s interests are, as a
practical matter, protected.”) A more difficult question is whether the Union’s interest in
representing its non-Muslim employees could be impaired by this suit. Defendant
claims that “[a]ny religious accommodation relief for Muslim employees will significantly
impact non-Muslim employees (and could result in major discord at the plant).” Docket
No. 12 at 9. But, given that the relief requested does not substantially impact the CBA,
it is not clear what legitimate, non-frivolous interest the Union has in mollifying any
discord that may arise from accommodating Muslim employees.2 Moreover, the CBA
2

Union members not involved in this litigation arguably also have an interest in
maintaining their seniority, an interest that defendant claims will be affected if the Court
orders reinstatement of terminated plaintiffs. Plaintiffs are not explicitly seeking
retroactive seniority in addition to reinstatement here, compare EEOC v. Rockwell Int’l
Corp., 23 F. Supp. 2d 892, 894 (N.D. Ill. 1998), but even if they were, defendant has not
established that reinstatement with seniority would violate the CBA. Moreover,
9

allows the company to unilaterally make such religious accommodations without
consulting the Union so long as the accommodations do not require modification or
waiver of the CBA. See Docket No. 12-2 at 12. Therefore, the Court concludes that
the Union’s ability to protect its interests is not so impeded as to require joinder of the
Union under Rule 19(a)(1)(B)(i).
The Court also finds that allowing this case to proceed without the Union will not
subject defendant to a “substantial risk of incurring double, multiple, or otherwise
inconsistent obligations.” See Fed. R. Civ. P. 19(a)(1)(B)(ii). Defendant’s primary
concern is that, if it implements changes to policies at its plant without involving the
Union, it will be subject to unfair labor practice charges. Defendant has not established
that the risk of such charges is substantial in light of the fact that the CBA itself directs
defendant to accommodate employees’ religious practices and allows defendant to
make unilateral changes in its policies in order to do so, provided that such changes do
not waive or modify provisions of the CBA. See Docket No. 12-2 at 12. As discussed
above, were the Court to grant the relief plaintiffs request, it would be within the
parameters of the CBA. Defendant’s fears in this regard are largely speculative. See
Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250, 1259 (10th Cir. 2001) (“The key
is whether the possibility of being subject to multiple obligations is real; an
unsubstantiated or speculative risk will not satisfy the Rule 19(a) criteria.”) (quoting

employees who were not terminated likely do not have a valid interest in seniority
obtained by virtue of unlawful discrimination. See Potter, 480 F. Supp. at 212-13,
Hovanas v. Amer. Eagle Airlines, Inc., 2009 WL 4639492 at *6 (N.D. Tex. Dec. 8, 2009)
(union “could not possibly have an interest or obligation to maintain a discriminatory and
illegal Seniority List practice”).
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Wright et al., Federal Practice & Procedure § 1604 at 62). The Court finds that
defendant does not face a substantial risk of inconsistent obligations so as to render
the Union a required person under Rule 19(a)(1)(B)(ii).
Because the Court finds that the Union is not a required person to be joined if
feasible under Rule 19(a), it need not address the feasibility of joining the Union or the
appropriateness of dismissal if the Union cannot be joined. Accordingly, the Court will
deny defendant’s motions insofar as the motions seek dismissal under Rule 19.
B. Failure to Conciliate in Good Faith
Defendant’s motion to dismiss the EEOC’s complaint next argues that the
complaint must be dismissed because the EEOC did not conciliate in good faith before
filing suit as required by 42 U.S.C. § 2000e-5(b), which directs the EEOC to engage in
“informal methods of conference, conciliation, and persuasion.” In making this
argument, defendant refers to evidence and attaches materials outside of the
pleadings, as does the EEOC in its response. Consequently, the Court will convert this
portion of defendant’s motion into a motion for summary judgment. See Fed. R. Civ. P.
12(d) (allowing that when “matters outside the pleadings [have been] presented . . . and
not excluded” and “[a]ll parties [have been] given a reasonable opportunity to present all
the material that is pertinent to the motion” such conversion is appropriate).
“[T]he EEOC is required to act in good faith in its conciliation efforts,” E.E.O.C. v.
the Zia Co., 582 F.2d 527, 533 (10th Cir. 1978), and must make a “sincere and
reasonable effort to negotiate by providing the defendant an adequate opportunity to
respond to all charges and negotiate possible settlements.” E.E.O.C. v. Prudential Fed.

11

Sav. & Loan Ass’n, 763 F.2d 1166, 1169 (10th Cir. 1985) (quotation omitted). The
Tenth Circuit, however, has instructed district courts not to “examine the details of the
offers and counteroffers between the parties, nor impose its notions of what the
agreement should provide” when considering whether the EEOC has met its
conciliation obligations. Zia, 582 F.2d at 533. Rather, the court should only inquire
whether the minimal jurisdictional requirement is satisfied by the EEOC’s “sufficient
albeit limited effort to conciliate” and then, “‘if the district court finds that further
conciliation efforts are required the proper course is to stay proceedings until such
informal conciliation can be concluded.’” Prudential, 763 F.2d at 1169 (quoting Marshall
v. Sun Oil Co., 592 F.2d 563, 566 (10th Cir. 1979)). “In the Tenth Circuit, if there has
been any attempt at conciliation, the action cannot be dismissed for failure to attempt
conciliation.” EEOC v. State of Kansas, Dept. of Admin., 1982 WL 303 at *3 (D. Kan.
April 8, 1982).
Here, defendant does not dispute that the EEOC attempted conciliation. Rather,
it argues that the EEOC’s failure to include the Union in conciliation precluded the
possibility of an acceptable settlement. Defendant provides no authority for the
proposition that the EEOC had a duty to include the Union, nor does it appear from the
records of the parties’ conciliation efforts that defendant truly believed the Union to be
necessary to the process. Both the EEOC and defendant have submitted evidence that
the EEOC informed defendant of the nature and extent of the violations and the relief
sought, gave defendant an opportunity to respond, and informed defendant that a
breakdown of the conciliation process could result in legal action. See State of Kansas,

12

1982 WL 303 at *3 (describing “adequate conciliation” as meeting these requirements).
The record also shows that the parties met several times to explore a potential
settlement. Because the Court finds that there have been sufficient attempts to
conciliate and because defendant has not sought a stay in order to conduct further
conciliation, defendant’s motion to dismiss for failure to conciliate will be denied. See
id. at *4 (“There being no request for a stay of proceedings before this court, the issue
of good faith is not material.”).
C. Failure to Exhaust
Defendant seeks dismissal of the Abade and Abdulle intervenors’ complaints on
the basis that the intervenors have not exhausted their administrative remedies as
required by Title VII and, therefore, the Court lacks subject matter jurisdiction over their
claims. Defendant argues that the Abade intervenors have failed to exhaust because
they either filed unverified charges of discrimination or did not file charges at all.
Defendant argues that the Abdulle intervenors have also failed to exhaust because they
filed suit before receiving right to sue letters from the EEOC, filed charges that were
untimely, or failed to file charges at all.
1. Standard of Review
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if
the Court lacks subject matter jurisdiction over claims for relief asserted in the
complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by

13

presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)).
When resolving a facial attack on the allegations of subject matter jurisdiction, the Court
“must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). To the extent the defendant attacks the factual basis for
subject matter jurisdiction, the Court “may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed
jurisdictional facts.” SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir.
1997). “Reference to evidence outside the pleadings does not convert the motion to
dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately,
and in either case, plaintiffs have “[t]he burden of establishing subject matter
jurisdiction” because they are “the party asserting jurisdiction.” Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
Before filing suit under Title VII, a plaintiff must exhaust his administrative
remedies with the EEOC. Shikles v. Sprint/United Management Co., 426 F.3d 1304,
1317 (10th Cir. 2005). The exhaustion of administrative remedies is a jurisdictional
prerequisite in the Tenth Circuit and, therefore, appropriate for resolution under Rule
12(b)(1). Id. (“Unlike many other circuits, we have held that a plaintiff’s exhaustion of
his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII not merely a condition precedent to suit.”). The Court is permitted to exercise
jurisdiction over claims falling within “the scope of the administrative investigation that

14

can reasonably be expected to follow the charge of discrimination submitted to the
EEOC.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (quotation marks
and citation omitted). “[B]ecause failure to exhaust administrative remedies is a bar to
subject matter jurisdiction, the burden is on the plaintiff as the party seeking federal
jurisdiction to show, by competent evidence, that she did exhaust.” McBride v. CITGO
Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).
2. Abade Intervenors
The Abade intervenors consist of 104 current or former employees of defendant,
84 of whom filed charges with the EEOC. Some of the Abade intervenors are also
named in the EEOC complaint as charging parties. The Court granted the Abade
intervenors’ unopposed motion to intervene. Title VII grants “[t]he person or persons
aggrieved” by charged discrimination an unconditional right to intervene in a suit
brought by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); EEOC v. GMRI, Inc., 221 F.R.D.
562, 563 (D. Kan. 2004).
As a threshold matter, the Court finds that the Abade intervenors’ claims are not
automatically viable by virtue of their being “persons aggrieved” under the statute.
Contrary to the intervenors’ argument, no authority suggests that the right to intervene
exempts them from the traditional exhaustion requirements applicable to individual
plaintiffs bringing Title VII claims. Compare EEOC v. Fry’s Electronics, --- F. Supp. 2d
----, 2011 WL 938384 (W.D. Wash. 2011) (reasoning that the right to intervene must be
read in conjunction with the exhaustion requirement and holding that “persons
aggrieved” under the statute only covers individuals who filed charges with the EEOC).

15

Although intervenors cite cases holding that those individuals who have failed to
exhaust their claims may nonetheless intervene when the EEOC brings suit, these
cases apply the single filing rule, an exception to the exhaustion requirement which the
Court will address below. See, e.g., EEOC v. Albertson’s LLC, 247 F.R.D 638, 643 (D.
Colo. 2007) (applying single filing rule but noting that its application was premised on
the existence of a valid, properly exhausted charge on which the intervenors could
piggyback).
Having found that the intervenors are not automatically exempt from the
exhaustion requirement, the Court considers whether they have exhausted their
administrative remedies. Defendant argues that all but two of the Abade intervenors’
charges were never properly verified as they were signed only by the charging parties’
attorneys and, therefore, these intervenors have failed to administratively exhaust their
claims. Before filing suit, a plaintiff must file a charge of discrimination “in writing under
oath or affirmation” with the EEOC. 42 U.S.C. § 2000e-5(b). “[A] document constitutes
a charge if it (i) provides the minimum information the regulations require, and (ii) can
‘be reasonably construed as a request for the agency to take remedial action to protect
the employee’s rights or otherwise settle a dispute between the employer and
employee.’” Semsroth v. City of Wichita, 304 F. App’x 707, 712-13 (10th Cir. 2008)
(quoting Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)). It is
undisputed that a subset of the Abade intervenors filed charges with the EEOC and that
these charges were only signed by their attorneys.
EEOC regulations define “verified” as “sworn to or affirmed before a notary
public, designated representative of the Commission, or other person duly authorized
16

by law to administer oaths and take acknowledgments, or supported by an unsworn
declaration in writing under penalty of perjury.” 29 C.F.R. § 1601.3. The intervenors
argue that their charges were “verified” in compliance with this regulation because
EEOC investigators interviewed each intervenor, the intervenor indicated he or she
wanted to file charges with the EEOC, and the investigator drafted a charge of
discrimination which was signed by the intervenor’s attorney. See Docket No. 76-5 at 3
¶ 3 (Declaration of Shannon Breen). This process, however, does not demonstrate that
the intervenors’ charges were actually “under oath or affirmation.” See 42 U.S.C.
§ 2000e-5(b). Although these investigators were designated to administer oaths and
take acknowledgments, there is no evidence they actually did so after preparing the
intervenors’ charges. See Docket No. 76-5. Although the applicable regulations allow
charges of discrimination to be submitted on behalf of a person, the charge must still be
verified. See 29 C.F.R. §§ 1601.7(a) and 1601.9. There being no evidence that the
charges here were verified, the Court finds that they were not verified.
The question now becomes whether these intervenors’ failure to verify the
charges dooms their claims. No Tenth Circuit case has addressed this issue. In
Peterson v. City of Wichita, 888 F.2d 1307, 1308-09 (10th Cir. 1989), the Tenth Circuit
upheld an EEOC regulation which allows an individual who files an unverified charge to
later amend the charge and have the amended charge relate back to the date of the
original unverified filing. See 29 C.F.R. § 1601.12(b). Peterson reasoned that the
regulation does “not frustrate the purpose of the verification requirement, which is to
protect the employer from frivolous claims, because the EEOC does not proceed to

17

investigate a charge until it is verified.” 888 F.2d at 1309. The Supreme Court held
similarly in Edelman v. Lynchburg College, 535 U.S. 106 (2002), finding that the
regulation was valid and explaining that “[t]he verification requirement has the . . . object
of protecting employers from the disruption and expense of responding to a claim
unless a complainant is serious enough and sure enough to support it by oath subject
to liability for perjury. This object, however, demands an oath only by the time the
employer is obliged to respond to the charge, not at the time an employee files it with
the EEOC.” Id. at 1149.
In this case, contrary to the assumptions regarding EEOC procedures underlying
Peterson and Edelman, the EEOC investigated the intervenors’ charges and demanded
responses from defendant before the charges were verified. The charges apparently
remain unverified. Courts of appeal that have considered similar facts have come to
different conclusions about a suit based on an unverified charge that the EEOC
nonetheless processed and investigated. The Third Circuit held that, although Title VII
requires verification, the requirement, “like the statute’s time limit for filing a charge with
the EEOC, should be subject to waiver ‘when equity so requires.’” Buck v. Hampton
Township Sch. Dist., 452 F.3d 256, 263 (3d Cir. 2006). The Fifth Circuit has held
similarly. See Price v. Sw. Bell Tel. Co., 687 F.2d 74, 79 (5th Cir. 1982) (“the
verification requirement is non-jurisdictional, and therefore subject to equitable
considerations”). These decisions suggest that the verification requirement may be
waived by an employer if the employer does not raise the issue before the agency. See
Buck, 452 F.3d at 264-65. The Ninth Circuit has held even more broadly that a failure

18

to verify is a “mere technical defect” which can be remedied under 29 C.F.R.
§ 1601.12(b) at any time, even after the EEOC has issued a right to sue letter and suit
has been filed, because “when, as here, the charge provided a sufficient description of
the factual allegations to put the employer on notice and allow the administrative
agency to conduct a complete investigation of the charges, the initial failure to verify
does not prejudice the employer and should not be fatal to the employee’s later filed
lawsuit.” See McWilliams v. Latah Sanitation, Inc., 149 F. App’x 588, 590 (9th Cir.
2005).
On the other side of the issue, the Fourth Circuit has held that verification is
mandatory and that an employee may only amend his charge to properly verify it while
the charge is still pending with the EEOC; once a right to sue letter is issued and the
employee files suit, it is too late. See Balazs v. Liebenthal, 32 F.3d 151, 156-57 (4th
Cir. 1994).3 The Eleventh Circuit has also held that verification is mandatory and that
summary judgment was appropriate where an employee made no effort to amend her
unverified charge. See Vason v. City of Montgomery, 240 F.3d 905, 907 (11th Cir.
2001). More recently, the Eleventh Circuit considered whether waiver was appropriate
when upholding the dismissal of a claim for failure to verify. See Butler v. Greif, 325 F.
App’x 748, 749-50 (11th Cir. 2009) (concluding that equitable relief from waiver
requirement was not appropriate because plaintiff failed to cooperate with EEOC).
Defendant urges the Court to hold that the verification requirement is not subject
3

As the Third Circuit points out in Buck, 452 F.3d at 262 n.5, the employer in
Balazs did not receive notice of the unverified charge while it was pending with the
EEOC and, thus, was “never given [the] chance” to engage in conciliation. See Balazs,
32 F.3d at 158.
19

to waiver because the Tenth Circuit has consistently held that administrative exhaustion
is a jurisdictional prerequisite. Although it is the general rule in the Tenth Circuit that a
plaintiff must exhaust his administrative remedies under Title VII for a court to have
jurisdiction, not every defect in the administrative process defeats jurisdiction. See
Peterson, 888 F.2d at 1309 (“although satisfying section 2000e-5(b) is a jurisdictional
prerequisite to enforcing an EEOC summons, filing a timely EEOC charge is
indisputably not a jurisdictional prerequisite to suit under Zipes”); Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982) (“filing a timely charge of discrimination with the
EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that,
like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).
Generally, the Tenth Circuit has held that a plaintiff alleging discrimination fails to
exhaust his administrative remedies where he fails to file a charge with the EEOC, files
a charge that does not include all of his claims or facts, or fails to cooperate with the
EEOC during the administrative process. See, e.g., Jones v. U.P.S., Inc., 502 F.3d
1176, 1186 (10th Cir. 2007) (court may exercise jurisdiction over claims falling within
“the scope of the administrative investigation that can reasonably be expected to follow
the charge of discrimination submitted to the EEOC”); Shikles v. Sprint/United
Management Co., 426 F.3d 1304 (10th Cir. 2005) (plaintiff failed to exhaust by not
cooperating with the EEOC). The Tenth Circuit has repeatedly held that the purposes
of administrative exhaustion are “1) to give notice of the alleged violation to the charged
party; and 2) to give the EEOC an opportunity to conciliate the claim.” Jones, 502 F.3d
at 1185 (quotations omitted). These purposes may be satisfied where a defendant

20

receives an unverified charge, fully responds to the charge, and engages in the
conciliation process. Finding no Tenth Circuit authority on point, the Court finds the
Third Circuit’s decision in Buck persuasive. Therefore, the Court holds that the
“technical” verification requirement, like the requirement of timely filing, may be waived
under certain circumstances and is not a jurisdictional prerequisite.
Moreover, the Court finds that defendant waived the verification requirement
here. In this case, as in Buck, “the employer received a notice and copy of the
charge[s], and filed a lengthy and detailed response on the merits, without mentioning
the [intervenors’] failure to verify the charge[s], all before” the EEOC brought suit on the
intervenors’ behalf. See 452 F.3d at 262; compare Balazs, 32 F.3d at 158 (employer
did not receive notice of charge before right to sue); Vason, 240 F.3d at 906 (same).
The purposes of administrative exhaustion outlined in Jones were served here.
Defendant received notice of the charges and the EEOC had a full opportunity to
conciliate.
The Court is not persuaded by defendant’s argument that the sheer number of
charges it received changes the equities of this case from those present in Buck.
Defendant claims that it was unable to assess the legitimacy of any one individual
charge because of the volume of charges it received from black African Muslim workers
at its Greeley plant; however, defendant submitted detailed and individualized
responses to each charge it received. See Docket No. 76-1. These position
statements support the Court’s finding that defendant could have discovered the

21

verification failure and raised it during the conciliation process.4 But, instead, defendant
chose to respond to the charges on their merits and raise the verification defect after
the EEOC decided to file suit on the charges. See Buck, 452 F.3d at 264 (allowing
employers to wait until a suit is filed to raise the verification issue “gives employers an
incentive not to raise a plaintiff’s failure to verify her charge before the EEOC, in the
hope that plaintiff will not discover the ‘technical’ error until it is too late, and that the
employer will be able to secure dismissal of any subsequent federal suit on that basis”).
When defendant chose to respond on the merits instead of raising the technical
requirement, it gave up “the protection that the requirement affords.” See id. at 263.
Therefore, the Court finds that defendant waived the verification requirement and the
Abade intervenors who filed charges have properly exhausted their administrative
remedies.
Having found that the Abade intervenors who filed unverified charges may
proceed with their claims, the Court must next determine whether those Abade
intervenors who did not file charges at all are covered by the single filing rule. The
single filing rule provides an exception to the requirement that, in order for a district
court to have jurisdiction over a Title VII claim, the plaintiff must have exhausted his
administrative remedies. See Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th

4

Defendant’s argument that it would have been too burdensome to identify the
signatures on all of the charges is also belied by the fact that at least some of the
charges were clearly and legibly signed by the intervenors’ attorneys on their behalf.
See, e.g., Docket No. 58-1 at 2 (Sadi Mohamed Adan’s charge). Had defendant raised
the issue during the administrative process even as to those charges that were clearly
signed only by attorneys, it would be evidence that defendant had not waived the issue.
22

Cir. 2004). Under the rule, a similarly situated plaintiff who has not filed a charge of
discrimination but whose claims arise out of the same circumstances and the same
time frame as individuals who have filed a proper charge may “piggyback” on the
properly filed charge. See id. Although the rule is not limited to class actions, it is
unclear in the Tenth Circuit whether the rule also requires that the properly exhausted
charge give the defendant notice that the discrimination relates to an entire class of
employees. See id. at 1198-99. The purpose of this rule “is to give effect to the
remedial purposes of [Title VII] and to not exclude otherwise suitable plaintiffs from a
[Title VII] class action simply because they have not performed the useless act of filing
a charge.” Id. at 1197 (quotations omitted). “The act of filing a charge is deemed
‘useless’ in situations in which the employer is already on notice that plaintiffs may file
discrimination claims, thus negating the need for additional filings.” Id.; see also
Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1110 (10th Cir. 2001) (“The
policy behind the single filing rule is that it would be wasteful, if not vain, for numerous
employees, all with the same grievance, to have to process many identical complaints
with the EEOC.”) (quotations omitted).
Application 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.
The Abade intervenors’ complaint lists the name of each intervenor along with the dates
of their employment with defendant; however, it does not indicate which of these
intervenors filed a charge and which did not. In order to analyze whether those
intervenors who did not file charges may piggyback on the charges that were actually
filed, the Court requires more information about each individual intervenor’s claim.
23

Therefore, the Court will order briefing on this issue and will hold in abeyance its
decision on the applicability of the single filing rule to those Abade intervenors who did
not file a charge with the EEOC.
3. Abdulle Intervenors
Defendant offers three reasons that the Abdulle intervenors’ complaint should be
dismissed for failure to exhaust. First, none of these intervenors has received a right to
sue letter from the EEOC; second, all of their claims are time-barred; and third, one of
them – Faysal Ibrahim – did not file a charge of discrimination with the EEOC.5 The
Abdulle intervenors respond that their lack of right to sue letters are immaterial, that
their claims are timely, and that, in any case, their claims are covered under the single
filing rule.
The Court will first inquire whether defendant is correct that the Abdulle
intervenors have failed to exhaust and then assess whether the single filing rule might
nonetheless save their claims. The Abdulle intervenors do not dispute that they filed
their complaint in intervention before the EEOC issued them right to sue letters. Title
VII provides that the EEOC will issue a right to sue letter within 180 days of the filing of
a charge if the agency has not filed a civil action on the charge or obtained a
settlement. See 42 U.S.C. § 2000e-5(f)(1). “Under Title VII, a plaintiff must obtain a
right to sue letter from the EEOC as a prerequisite to suit.” Shikles v. Sprint/United

5

The Abdulle intervenors point out that defendant has not made any arguments
in its motion to dismiss their complaint as to the adequacy of their 42 U.S.C. § 1981
claims, which do not require administrative exhaustion. The intervenors are correct on
this point and those claims will, therefore, survive regardless of the Court’s conclusions
on the intervenors’ exhaustion of their Title VII claims.
24

Mgmt. Co., 426 F.3d 1304, 1310 (10th Cir. 2005). “The EEOC has exclusive
jurisdiction over a claim during the 180 days following the filing of a charge with the
EEOC by an aggrieved individual. During this time an individual may not bring suit in
federal court.” EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1200 (10th Cir. 2003)
(internal citations omitted). Although the intervenors point to cases where courts have
allowed plaintiffs to bring suit before receiving right to sue letters, plaintiffs in these
cases filed suit more than 180 days after filing their charges. See Dupree v. Housing
Auth. of Kan. City, Kan., 1991 WL 12819 at *5 (D. Kan. Jan. 11, 1991); Stone v.
Lockheed Martin Corp., Civil Action No. 08-cv-02522-REB-KMT, 2009 WL 3158122 at
*2 (D. Colo. Sept. 24, 2009). Here, intervenors filed their complaint in intervention
during the 180 day period. See Docket Nos. 52-2; 52-3; 52-4; 52-5; 52-6.
However, 180 days has now passed since the intervenors filed their charges with
the EEOC.6 The Court must, therefore, determine if it has subject matter jurisdiction
over these intervenors’ claims. Martin v. Cent. States Emblems, Inc., 150 F. App’x 852
(10th Cir. 2005), is instructive on this issue. In Martin, plaintiff filed his complaint in the
district court before filing a charge with the EEOC. Id. at 854-55. When he received his
right to sue letter from the EEOC, plaintiff supplemented his district court complaint with
the right to sue letter. Id. The Tenth Circuit explained that Martin’s filing of his suit
before fully exhausting his administrative remedies was permissible because “[a] Title
VII complainant may file an action prior to receiving [a] right to sue letter, provided there

6

The Court is uncertain of the date which intervenor Abdirasak Issa filed his
charge. See Docket No. 52-5. In any case, it has already been 180 days since Mr.
Issa filed his charge or it will be on June 13, 2011.
25

is not evidence showing that the premature filing precluded the [EEOC] from performing
its administrative duties or that the defendant was prejudiced by such filing.” See id. at
855 n.3 (quoting Edwards v. Occidental Chem Corp., 892 F.2d 1442, 1445 n.1 (9th Cir.
1990)). Other circuits have also held that failure to obtain a right to sue letter is a defect
that can be cured after the filing of the suit. See Jones v. American State Bank, 857
F.2d 494, 499-500 (8th Cir. 1988); Pinkard v. Pullman-Standard, a Division of Pullman,
Inc., 678 F.2d 1211, 1215 (5th Cir. 1982). Intervenors, of course, have not actually
produced evidence of their right to sue letters and the defect arguably has not yet been
cured. But the Tenth Circuit authority stating that a court has jurisdiction over an
employee’s suit “after the expiration of the 180 days . . . even if a right-to-sue letter was
not actually received,” see W.H. Braum, 347 F.3d at 1200-01 (citing Perdue v. Roy
Stone Transfer Corp., 690 F.2d 1091, 1093 (4th Cir. 1982)), leads the Court to the
conclusion that, finding no evidence that the premature filing prejudiced either the
EEOC or defendant, it has jurisdiction over these intervenors’ claims.
Finding that the Abdulle intervenors who filed charges have not failed to exhaust
by filing their claims prematurely, the Court now considers the timeliness of their claims.
Defendant argues that none of the intervenors filed their charges within 300 days of
Ramadan 2008, and thus, they cannot base their claims on the events that allegedly
occurred during that period. See 42 U.S.C. § 2000e-5(e)(1). Intervenors admit that the
five intervenors who filed charges did so more than 300 days after Ramadan 2008, but
they argue that the events of Ramadan 2008 can be considered because they have
alleged an ongoing hostile work environment. It is true that, “[p]rovided that an act

26

contributing to the [hostile work environment] claim occurs within the filing period,” the
court may consider acts outside the statutory time period as evidence of the hostile
work environment. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117
(2002). All of the intervenors allege discriminatory practices that subsisted throughout
their employment, thereby falling within the filing period. However, the intervenors also
bring claims based on discrete acts of discrimination, including failure to accommodate
religion; discriminatory discipline and discharge; and retaliation. The intervenors cannot
base these claims on events outside the statutory period. See id. at 113 (plaintiffs must
file their charge within 180 or 300 days of a discrete discriminatory act for the charge to
be timely). Therefore, the Court finds that the intervenors’ claims are untimely insofar
as they seek to recover for discrete acts that occurred more than 300 days before they
filed their charges. See Docket No. 40 at 10 (alleging intervenor Maryan Abdulle was
disciplined on September 5, 2008); at 17 (alleging intervenor Raawi Sahal was
suspended and disciplined on September 5, 2008). The Court also rejects the
intervenors’ attempt to cure this defect by way of the single filing rule. The Tenth Circuit
has held that the single filing rule is not applicable to individuals who actually filed
charges but whose charges were untimely. See O’Neal v. Thompson, 54 F. App’x 301,
304 (10th Cir. 2002) (declining to extend the single filing rule to a plaintiff who had filed
her federal suit too long after receiving her right to sue letter).
Finally, the Court must consider the claim of Faysal Ibrahim, who did not file a
charge with the EEOC but now seeks to bring claims under the single filing rule. In
order to piggyback on the other intervenors’ charges, Mr. Ibrahim must be similarly
situated to an intervenor with a properly exhausted charge and his claim must arise out
27

of the same discriminatory treatment and have occurred within the same time frame.
See Foster, 365 F.3d at 1197. Defendant contends that there is no properly exhausted
charge upon which Mr. Ibrahim may piggyback. The Court disagrees. Mr. Ibrahim is
similarly situated to the other intervenors as they are all black Somali Muslims
employed by defendant. Mr. Ibrahim alleges that he was made to wait for bathroom
breaks, was denied the opportunity to sharpen his knife, was denied medical treatment,
was exposed to offensive graffiti, was called racist names, had meat thrown at him, was
given more work than other workers, was retaliated against for reporting discrimination,
was suspended and was terminated. See Docket No. 40 at 14-15. The other
intervenors’ claims stem from the same conduct; they make identical allegations of
denial of bathroom breaks, denial of knife sharpening, denial of adequate medical
treatment, exposure to graffiti, verbal harassment, retaliation for reporting
discrimination, meat throwing, suspension, and termination. Defendant argues that Mr.
Ibrahim’s allegations do not arise out of similar discriminatory conduct, particularly
focusing on Mr. Ibrahim’s allegation that he was wrongfully terminated. Abdirashid
Hussein’s charge, however, also alleged wrongful discharge after reporting
discrimination. See Docket No. 52-4. The Court thus finds that Ibrahim’s claim stems
from the same discriminatory treatment as the other intervenors’ claims. See Foster,
365 F.3d at 1197; EEOC v. Albertsons, 579 F. Supp. 2d 1342, 1346 (D. Colo. 2008)
(applying single filing rule to pattern and practice case).7
7

The Court is unconvinced by defendant’s argument that the single filing rule
does not apply because the discrimination alleged involves “different supervisors and
different incidents.” See Semsroth, 304 F. App’x at 714 n. 6. Had Mr. Ibrahim filed a
charge it would have been largely identical to the charges actually filed by other
28

Mr. Ibrahim also allegedly suffered discrimination during the same time frame as
the other intervenors. An individual’s unexhausted claim occurs in the same time frame
as an exhausted claim if the individual could have filed his charge at the same time that
the properly exhausted charge was filed. See Thiessen, 267 F.3d at 1111. Mr. Ibrahim
alleges discrimination occurring throughout his employment from June 2008 to July
2009. See Docket No. 40 at 13-15. He also alleges that he was suspended on July 20,
2009 and dismissed a week later, around July 27, 2009. To file a timely charge related
to his termination, Mr. Ibrahim would have had to file his charge within 300 days of July
27, 2009, or by May 23, 2010. Mr. Hussein, who also alleged termination in his charge,
filed his charge on November 22, 2009, within this time period. Finally, although it is
not clear that the Court is required to do so, see Foster, 365 F.3d at 1198-99, the Court
finds that the EEOC charges actually filed gave defendant notice of the class-wide
nature of the charge. See Docket Nos. 52-3; 52-5; 52-6; 52-11 (alleging discrimination
on behalf of a “class of individuals”). Therefore, the Court will deny defendant’s motion
to dismiss Mr. Ibrahim’s claim.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(1), 12(b)(6), 12(b)(7) and 19 [Docket No. 12] is DENIED. It is further
ORDERED that defendant’s Motion to Dismiss Complaint in Intervention [Docket
No. 52] is DENIED in part and GRANTED in part. The Abdulle intervenors’ claims
intervenors and, therefore, application of the single filing rule is appropriate. See
Albertson’s, 579 F. Supp. 2d at 1456.
29

based on discrete acts of discrimination occurring more than 300 days before they filed
their charges with the EEOC are dismissed. The Abdulle intervenors’ remaining claims
are not dismissed. It is further
ORDERED that defendant’s Motion to Dismiss Amended Complaint in
Intervention (Abade, et al.) [Docket No. 64] is DENIED in part and taken under
advisement in part. On or before June 30, 2011, the Abade intervenors shall file a brief
no longer than ten pages detailing which intervenors did not file charges. For each of
these intervenors, the brief shall summarize the factual allegations underlying his or her
claim and attach a properly exhausted charge upon which the intervenor proposes to
piggyback.

DATED June 9, 2011.
BY THE COURT:

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

30