Equal Employment Opportunity Commission v. Western Distributing Company

Filing 103

ORDER granting 98 Plaintiff's Opposed Motion for Leave to Add an Aggrieved Individual, by Magistrate Judge Scott T. Varholak on 1/3/18. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01727-LTB-STV
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
WESTERN DISTRIBUTING COMPANY, d/b/a WESTERN DISTRIBUTING
TRANSPORTATION CORP., a Colorado Corporation,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter is before the Court on Plaintiff’s Opposed Motion for Leave to Add an
Aggrieved Individual (the “Motion”) [#98]. The Motion has been referred to this Court.
[#99] This Court has carefully considered the Motion, related briefing, the case file, and
the applicable case law, and has determined that oral argument would not materially
assist in the disposition of the Motion. For the following reasons, I GRANT the Motion.
I.

Background
On July 7, 2016, Plaintiff filed its Complaint alleging violations of Title I and Title

V of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights
Act of 1991.

[#1]

Plaintiff brought this action “to correct” Defendant’s allegedly

“unlawful employment practices on the basis of disability and to provide appropriate
relief to Clinton Kallenbach and other aggrieved individuals, who were adversely
affected by such practices.” [Id. at 1] Generally, the Complaint alleges that Defendant

maintained a “full duty” return-to-work policy that impermissibly required employees to
return to work without restrictions, failed to provide reasonable accommodations,
imposed an inflexible policy of allowing medical leave of no more than 12 weeks, and
retaliated against individuals who sought reasonable accommodations. [Id. at 2, 5-8,
12-18]
On September 14, 2016, United States Magistrate Judge Nina Y. Wang entered
a Scheduling Order setting a December 1, 2016 deadline for Plaintiff to identify
aggrieved individuals. [#26 at 23-24]

On October 21, 2017, this Court held a

discovery hearing primarily concerning the nature of the notice that Plaintiff would mail
to Defendant’s current and former employees. [#65 at 2-14] Due to a dispute over the
language of the notice, Defendant did not object to resetting the deadline for identifying
aggrieved individuals.

[Id. at 15]

As a result, the Court extended the deadline to

January 16, 2017. [Id. at 17] The Court warned Plaintiff that it would “only consider an
addition [of aggrieved individuals] after that January 16 deadline [] in exceptional
circumstances.” [Id. at 18]
On January 13, 2017, this Court conducted another hearing on Plaintiff’s request
to extend the deadline to identify aggrieved individuals. [#71] Plaintiff explained that
there were 31 individuals who had not received notice and an additional 75 people who
had received notice but likely had not had sufficient time to respond. [Id. at 5-7] Plaintiff
further explained that there were another 45 people who had indicated that they wanted
to participate in the litigation, but who had not yet been interviewed. [Id. at 11] This
Court granted Plaintiff’s request and extended the deadline to identify aggrieved
individuals for 45 days. [Id. at 18-19] But the Court warned Plaintiff that it would not

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“grant[] any additional extensions of time to contact people. By [the] March 6th [status
conference] if [aggrieved individuals] haven’t joined in, they’re[] out.” 1 [Id. at 19]
On March 24, 2017, the parties filed a Joint Motion to Stay Discovery so that the
parties could pursue mediation [#81], which this Court granted [#83]. Over the next six
months, the parties pursued settlement discussions and the litigation remained stayed
until September 26, 2017. [## 88, 89, 91, 92] These settlement discussions ultimately
failed and on September 26, 2017, this Court entered an Amended Scheduling Order.
[## 94, 95] Pursuant to the Amended Scheduling Order, discovery is due by September
28, 2018, and dispositive motions are due by November 27, 2018. [#95 at 34-35] A
Final Pretrial Conference is set for February 4, 2019 [id. at 38], a Trial Preparation
Conference is set for June 28, 2019, and trial is set to commence on August 5, 2019 [#
96]. To date, Plaintiff has timely identified 63 aggrieved individuals. [#98 at ¶ 4]
On November 6, 2017, Plaintiff filed the instant Motion. [#98] The Motion seeks
to add Lee Sombelon, a former employee of Defendant, as an aggrieved individual. [Id.
at ¶ 5]

Attached to the Motion is a Declaration purportedly completed by Mr.

Sombelon. 2 [#98-1] The Declaration asserts that, on December 2, 2016, Mr. Sombelon
completed, signed, and returned to Plaintiff the participation agreement. [Id. at ¶ 4]
After not receiving a status update, Mr. Sombelon made several calls to Plaintiff’s
1

As explained in detail below, the additional aggrieved individual Plaintiff seeks to
include both was contacted by Plaintiff, and signed and mailed his participation
agreement, before the March 6 deadline.
2
The Declaration purports to be submitted pursuant to 28 U.S.C. § 1746, which allows
for the submission of unsworn declarations under penalty of perjury. [#98-1 at 1] The
Declaration, however, is neither signed nor dated. [See id. at 2] As a result, it fails to
comply with Section 1746, which requires both a date and a signature. 28 U.S.C. §
1746(2). Nonetheless, because the Motion does not require a sworn affidavit and, in
any event, the Defendant does not appear to challenge the authenticity of the assertions
made in the Declaration, the Court will consider it.
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general number. [Id. at ¶¶ 6-10] Mr. Sombelon did not receive a return call. [Id. at ¶
11]
According to the Declaration, in August 2017, Mr. Sombelon again called
Plaintiff’s general number and referenced the Notice of Litigation letter. [Id. at ¶ 12]
This time, Mr. Sombelon was given the number for Plaintiff’s counsel in this litigation,
Karl Tetzlaff. [Id.] On August 25, 2017, Mr. Sombelon contacted Mr. Tetzlaff and left a
voice message. [Id. at ¶ 13] In early September, Mr. Sombelon received a return
phone call from an EEOC Legal Technician, Janet Brown. [Id. at ¶ 14] During this
conversation, Mr. Sombelon conveyed to Ms. Brown his attempts to participate as an
aggrieved individual. [Id.]
Approximately two months after Mr. Sombelon’s call with Ms. Brown, Plaintiff
filed the instant Motion. [#98] Defendant filed an opposition on November 27, 2017
[#100], and Plaintiff replied on December 11, 2017 [#102].
II.

Analysis
While the instant Motion requests leave to add an aggrieved individual, in effect,

Plaintiff seeks to modify the Scheduling Order, so as to designate Mr. Sombelon as a
witness.

[See generally #98]

By extension, Defendant’s opposition to the Motion

amounts to its attempt to preclude Mr. Sombelon from testifying about his particular
damages. [See generally #100]
“Numerous courts have noted . . . that a ‘Scheduling Order is not a frivolous
piece of paper, idly entered, which can be cavalierly disregarded by counsel without
peril.’” Washington v. Arapahoe Cty. Dep’t of Soc. Servs., 197 F.R.D. 439, 441 (D.
Colo. 2000) (quoting Widhelm v. Wal-Mart Stores, Inc., 162 F.R.D. 591, 593 (D. Neb.

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1995)). Federal Rule of Civil Procedure 16(b)(4) allows modification of a Scheduling
Order “only for good cause and with the judge’s consent.” “Demonstrating good cause
under the rule ‘requires the moving party to show that it has been diligent in attempting
to meet the deadlines, which means it must provide an adequate explanation for any
delay.’” Strope v. Collins, 315 F. App’x 57, 61 (10th Cir. 2009) (quoting Minter v. Prime
Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006)); see also Lehman Bros. Holdings
Inc. v. Universal Am. Mortg. Co., LLC, 300 F.R.D. 678, 681 (D. Colo. 2014).
Nonetheless, “total inflexibility is undesirable.” Summers v. Missouri Pac. R.R. Sys.,
132 F.3d 559, 604 (10th Cir. 1997) (quotations omitted). As a result, “[a]lthough a good
cause inquiry will, in most cases, begin with an inquiry into the movant’s diligence, there
may be other relevant considerations.” E.E.O.C. v. JBS USA, LLC, No. 10-cv-02103PAB-KLM, 2016 WL 1039907, at *5 (D. Colo. Mar. 16, 2016) (citing 6A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1522.2 (3d ed. 2015)).
Initially, the parties dispute the proper standard that the Court should apply in
determining whether Plaintiff has established good cause.

Plaintiff argues that the

Court should apply the four-factor test set forth in Burks v. Okla. Publ’g Co., 81 F.3d 975
(10th Cir. 1996) (“the Burks factors”).

[#98 at 3]

Defendant, on the other hand,

contends that Burks is inapplicable and the Court should consider only the EEOC’s
diligence in seeking to add aggrieved individuals. [#100 at 3 n.1] The Court agrees
with Plaintiff that it may look to the Burks factors for guidance in deciding the instant

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Motion, but even if the factors did not apply here, the Court would nevertheless grant
the Motion. 3
In E.E.O.C. v. Original Honeybaked Ham Co. of Ga., Inc., Civil Action Nos. 11cv-02560-MSK-MEH, 12-cv-02137-MSK-MEH, 2013 WL 551573, at *1 (D. Colo. Feb.
13, 2013), the defendant moved to “strike” four allegedly aggrieved individuals on the
basis that they were not timely disclosed.

Interpreting the motion as seeking to

preclude those individuals from providing testimony about their damages, Chief United
States District Judge Marcia S. Krieger found the motion premature, reasoning that
“whether such evidence should be precluded cannot be determined until it is clear what
evidence will be presented at trial.” Id. at *2.
While the instant Motion does not involve a defendant’s motion to strike, the
principles are the same.

As noted above, by opposing the Motion, Defendant is

effectively asking this Court to preclude Mr. Sombelon from presenting testimony about
his particular damages. Plaintiff, on the other hand, essentially seeks to modify the
scheduling order to designate Mr. Sombelon as a witness who can testify about his
damages. The Burks factors are helpful in analyzing such a request. See JBS USA,

3

The Court notes that this District has applied different approaches to the Rule 16 good
cause analysis. Compare JBS USA, 2016 WL 1039907, at *5, *5 n.6 (noting that
“[w]here a movant seeks to modify a scheduling order to designate additional witnesses,
the Tenth Circuit applies the Burks factors,” but not resolving whether the magistrate
judge was required to apply these factors), with Underwood v. Geo Group, Inc., Civil
Case No. 10-cv-00306-LTB-KLM, 2011 WL 2607117, at *2 (D. Colo. July 1, 2011) (“The
good cause standard ‘does not focus on the bad faith of the movant, or the prejudice to
the opposing party[; r]ather, it focuses on the diligence of the party seeking leave to
modify the scheduling order to permit the proposed amendment.” (quoting Pumpco, Inc.
v. Schenker Intern., Inc., 204 F.R.D. 667, 668 (D. Colo. 2001))). In any event, the Court
need not resolve this issue, because the Court would grant the Motion under either
standard.
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2016 WL 1039907, at *5 (finding Burks factors instructive in analyzing a movant’s
motion to modify the scheduling order to designate additional witnesses).
The Burks factors ask the Court to consider:
(1) the prejudice or surprise in fact of the party against whom the excluded
witnesses would have testified, (2) the ability of that party to cure the
prejudice, (3) the extent to which waiver of the rule against calling unlisted
witnesses would disrupt the orderly and efficient trial of the case or of
other cases in court, and (4) bad faith or willfulness in failing to comply
with the court’s order.
81 F.3d at 979. Here, all four factors support granting the Motion. Under the first two
factors, Defendant has not identified any prejudice, nor can the Court imagine any
prejudice, in allowing Plaintiff to add Mr. Sombelon to the suit, given that the discovery
deadline is more than eight months away and trial is more than a year and a half away.
As to the third factor, because trial is more than a year and a half away, designating Mr.
Sombelon as an aggrieved individual will not disrupt the efficient trial of this case or
other cases. Finally, there has been no showing of bad faith—at most, Plaintiff was
negligent in failing to put Mr. Sombelon in contact with Attorney Tetzlaff earlier. Thus,
the Burks factors support granting the Motion.
Moreover, even if the Court were to focus exclusively on Plaintiff’s diligence, as
Defendant proposes, the Court would still grant the Motion. Plaintiff is bringing this suit
pursuant to Section 107(a) of the ADA, which incorporates by reference Section 706 of
Title VII, 42 U.S.C. § 2000e-5. [#1 at ¶¶ 1,3]; see also 42 U.S.C. § 12117(a). The
Complaint makes clear that Plaintiff is relying on Section 706 and that Plaintiff is
seeking relief on behalf of all aggrieved individuals. [#1 at ¶¶ 3, 70-74, 78-81, 85, 8792, 102, 104-109; pp. 19-20] As a result, Plaintiff essentially “stands in the shoes” of
Mr. Sombelon and other individuals, who, in turn, cannot independently bring their own
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suit once the EEOC has done so. E.E.O.C. v. CRST Van Expedited, Inc., 611 F. Supp.
2d 918, 929 (N.D. Iowa 2009); see generally E.E.O.C. v. Waffle House, Inc., 534 U.S.
279, 291 (2002) (explaining that once a charge is filed, the EEOC is in command of the
process and, if the EEOC files suit on its own, the employee has no independent cause
of action). Given this relationship between aggrieved individuals and the EEOC, the
Court finds it appropriate to consider both the diligence of Plaintiff EEOC and Mr.
Sombelon’s own diligence when determining whether to allow the EEOC to designate
an aggrieved individual beyond the deadline for doing so.
Here, the EEOC’s diligence presents a clouded picture.

As part of its initial

attempt to identify aggrieved individuals, the EEOC sent nearly 1,200 notices to past
and present employees of Defendant. [#98 at ¶ 1] After this initial effort, the EEOC
“search[ed] for better addresses and remail[ed] hundreds of notices that were returned
as undeliverable.”

[#102 at 3]

The EEOC further “interview[ed] more than 100

individuals who returned participation agreements, analyz[ed] the facts presented by the
individuals interviewed, and timely identif[ied] 63 aggrieved individuals.” [Id.] These
actions would suggest the diligence needed to satisfy the good cause standard of Rule
16(b)(4).
On the other hand, the EEOC appears to have acted negligently in identifying Mr.
Sombelon as an aggrieved individual. For reasons unknown, the EEOC either did not
receive or did not properly process Mr. Sombelon’s timely application. Regardless of
whether the EEOC was initially at fault, however, Mr. Sombelon made numerous further
inquiries and the EEOC failed to return Mr. Sombelon’s calls. [#98-1 at ¶¶ 6-11] It took
months of effort by Mr. Sombelon before the EEOC finally bothered to put Mr.

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Sombelon in contact with the attorneys handling this litigation. [See generally #98-1]
Such a result is especially troubling given the EEOC’s role as commander of litigation
on behalf of aggrieved individuals.
But, in contrast to the EEOC’s actions in handling Mr. Sombelon’s inquiries, Mr.
Sombelon himself remained diligent in attempting to participate in this litigation. He
timely completed and mailed the participation agreement. [Id. at ¶ 4] Moreover, he
continued to call the EEOC to inquire about the litigation, despite the EEOC’s failure to
return Mr. Sombelon’s phone calls. [Id. at ¶¶ 8-10] Weighing Mr. Sombelon’s diligence
in attempting to participate in this litigation and the EEOC’s general diligence in
identifying aggrieved individuals, against the EEOC’s lack of diligence with respect to
identifying Mr. Sombelon, the Court concludes that any lack of diligence should not
preclude the EEOC from identifying Mr. Sombelon as an aggrieved individual.
Accordingly, Plaintiff’s Opposed Motion for Leave to Add an Aggrieved Individual
[#98] is GRANTED.
DATED: January 3, 2018

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

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