Equal Employment Opportunity Commission v. Global Horizons, Inc. et al
Filing
682
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT GLOBAL HORIZONS, INC. D/B/A GLOBAL HORIZONS MANPOWER INC.'S AFFIRMATIVE DEFENSES AND DENYING GLOBAL HORIZONS'S MOTION FOR SUMMARY J UDGMENT re 594 ; re 599 . Signed by JUDGE LESLIE E. KOBAYASHI on 02/28/2014. -- the EEOC's Motion for Partial Summary Judgment on Defendant Global Horizons, Inc. d/b/a Global Horizons Manpower Inc.'s Affirmat ive Defenses, filed November 1, 2013 is HEREBY GRANTED IN PART AND DENIED IN PART, and Global Horizons's Motion for Summary Judgment, filed November 1, 2013, is HEREBY DENIED. (eps)CERTIFICATE OF SERV ICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
Plaintiff,
)
)
)
vs.
)
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GLOBAL HORIZONS, INC., DBA
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GLOBAL HORIZONS MANPOWER,
)
INC.; CAPTAIN COOK COFFEE
COMPANY LTD.; DEL MONTE FRESH )
PRODUCE (HAWAII), INC.; KAUAI )
COFFEE COMPANY, INC.; KELENA )
)
FARMS, INC.,; MAC FARMS OF
)
HAWAII, LLC NKA MF NUT CO.,
LLC; MAUI PINEAPPLE COMPANY, )
)
LTD. AKA MAUI PINEAPPLE
)
FARMS; ALEXANDER & BALDWIN,
)
INC.; MASSIMO ZANETTI
BEVERAGE USA, INC.; AND DOES )
)
1-15, INCLUSIVE,
)
)
Defendants.
____________________________ )
UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
CIVIL 11-00257 LEK
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT GLOBAL HORIZONS, INC.
D/B/A GLOBAL HORIZONS MANPOWER INC.’S AFFIRMATIVE DEFENSES
AND DENYING GLOBAL HORIZONS’S MOTION FOR SUMMARY JUDGMENT
Before the Court are: Plaintiff Equal Employment
Opportunity Commission’s (“the EEOC” or “Plaintiff”) Motion for
Partial Summary Judgment on Defendant Global Horizons, Inc. d/b/a
Global Horizons Manpower Inc.’s1 Affirmative Defenses
(“Affirmative Defenses Motion”), filed on November 1, 2013; [dkt.
1
The Court will refer to Defendant Global Horizons, Inc.
d/b/a Global Horizons Manpower Inc. as “Global Horizons.”
nos. 594-95;] and Global Horizons’s Motion for Summary Judgment
(“Global Horizons Motion”), filed on November 1, 2013 [dkt. no.
599].2
Global Horizons did not respond to the EEOC’s motions.3
On December 6, 2013, the EEOC filed a consolidated reply as to
all four of its motions, emphasizing Global Horizons’s failure to
respond.
[Dkt. no. 659.]
The EEOC filed its memorandum in
opposition to the Global Horizons Motion on December 2, 2013.
[Dkt. no. 652].
Global Horizons did not file a reply in support
of its motion.
The Court finds these matters suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).
After careful consideration of the
motions, supporting and opposing memoranda, and the relevant
legal authority, the EEOC’s Affirmative Defenses Motions is
HEREBY GRANTED IN PART AND DENIED IN PART, and the Global
2
The Court will issue a separate order addressing: the
EEOC’s Motion for Partial Summary Judgment on the EEOC’s Pattern
or Practice Claim of Hostile Work Environment Against Global
Horizons, filed on November 1, 2013; [dkt. nos. 606-07;] the
EEOC’s Motion for Partial Summary Judgment on the EEOC’s Pattern
or Practice Claim of Disparate Treatment Against Global Horizons,
filed on November 1, 2013; [dkt. nos. 610, 612;] and the EEOC’s
Motion for Partial Summary Judgment on the EEOC’s Pattern or
Practice Claim of Retaliation Against Global Horizons, filed on
November 1, 2013 [dkt. nos. 616, 618].
3
On November 18, 2013, Defendant Kelena Farms, Inc. filed a
statement of no position as to both the Global Horizons Motion
and the EEOC’s Affirmative Defenses Motion. [Dkt. nos. 653,
655.]
2
Horizons Motion is HEREBY DENIED, for the reasons set forth
below.
BACKGROUND
On April 19, 2011, the EEOC filed this action pursuant
to Title VII of the Civil Rights Act of 1964 (“Title VII”) and
Title I of the Civil Rights Act of 1991.
The EEOC filed its
First Amended Complaint on July 15, 2011, its Second Amended
Complaint on December 16, 2011, and its Third Amended Complaint
on June 4, 2012.
[Dkt. nos. 12, 128, 263.]
The Third Amended
Complaint alleges that the defendants discriminated against a
class of Thai agricultural workers (“the Class members”) on the
basis of their national origin, and/or race and/or in retaliation
for their participation in protected activities.
Specifically,
the Third Amended Complaint alleges the following claims: pattern
or practice of discriminatory treatment based on national origin,
retaliation, and/or constructive discharge, in violation of 42
U.S.C. §§ 2000e-2(a), 2000e-3(a) (“Count I”); hostile work
environment/harassment, in violation of § 2000e-2(a) (“Count
II”); discriminatory terms and conditions of employment, in
violation of § 2000e-2(a) (“Count III”); and retaliation, in
violation of § 2000e-3 (“Count IV”).
¶¶ 622-96.]
[Third Amended Complaint at
Relevant to the instant motions, the Third Amended
Complaint prays for: permanent injunctive relief against Global
Horizons prohibiting it from engaging in discrimination based on
3
the Class members’ national origin and/or race, prohibiting it
from engaging in retaliation, and requiring it to provide equal
employment opportunities for persons of Thai national origin
and/or Asian race and to eradicate the effects of past and
present illegal employment practices; an order requiring Global
Horizons to make whole Marut Kongpia (“Kongpia”), and similarly
situated individuals, through backpay with prejudgment interest,
reinstatement, and any other necessary affirmative relief; an
order requiring Global Horizons to make whole Kongpia, and
similarly situated individuals, through damages for pecuniary
losses and non-pecuniary losses suffered as a result of Global
Horizons’s illegal employment practices; an award of punitive
damages to Kongpia, and similarly situated individuals; any other
appropriate relief; and an award to the EEOC of the costs of this
action.
[Id., Prayer for Relief at ¶¶ A-B, S, BB, KK, UU,4 CCC,
LLL-MMM.]
Kongpia filed a Charge of Discrimination with the EEOC
(“Kongpia Charge”) on April 18, 2006, alleging discrimination
based on national origin and retaliation.
[Concise Statement of
Material Facts in Support of the Affirmative Defenses Motion,
filed 11/1/13 (dkt. no. 597) (“Affirmative Defenses CSOF”), Decl.
of Sue J. Noh & Exhs. in Supp. of Affirmative Defenses Motion
4
The citation refers to the first of two consecutive
paragraphs designated as “UU.”
4
(“Noh Affirmative Defenses Decl.”), Exh. 4 at 1.]
In the Kongpia
Charge, he stated, in pertinent part:
I.
Since 2003, I have been harassed, subjected
to different terms and conditions of
employment, and intimidated in all aspects of
employment with Global Horizons, due to my
national origin (Thailand).
II.
On many occasions, I objected the [sic] terms
and conditions of employment but was ignored.
III. I believe I have been harassed, subjected to
different terms and conditions of employment,
and intimidated because of my national origin
(Thailand) and retaliated against for
engaging in a protected activity, in
violation of Title VII of the Civil Rights
Act of 1964, as amended.
IV.
[Id.]
Further, since 2003, I believe that employees
as a class have been discriminated against
due to their national origin (Thailand) and
retaliated against for engaging in a
protected activity, in violation of Title VII
of the Civil Rights Act of 1964, as amended.
After conducting an investigation, the EEOC issued a
determination letter dated August 19, 2010 to Kongpia and Global
Horizons stating that the EEOC found reasonable cause to
determine that Global Horizons had violated Title VII.
Affirmative Defenses Decl., Exh. 8 at 1-2.]
[Noh
The EEOC issued a
letter dated August 26, 2010 to Global Horizons, inviting Global
Horizons to engage in conciliation efforts, [id., Exh. 9 at 1-4,]
but Global Horizons did not respond [id. at 5-6 (letter dated
9/27/10 to counsel for Global Horizons)].
5
Global Horizons filed its answer to the Third Amended
Complaint (“Answer”) on January 23, 2013.
[Dkt. no. 499.]
Global Horizons’s answer asserts forty-seven affirmative
defenses, and the Twenty-First Defense is that “Plaintiff’s,
Charging Parties’, Claimants’, and class members’ claims are
barred by the doctrine of laches.”
[Id. at ¶ 112.]
The Global
Horizons Motion asks this Court to dismiss all claims against
Global Horizons based on the doctrine of laches.
[Global
Horizons Motion at 1.]
In the Affirmative Defenses Motion, the EEOC seeks
summary judgment as to several of Global Horizons’s affirmative
defenses.
The EEOC argues that Global Horizons has not
identified a genuine issue of material fact as to the merits of
those affirmative defenses.
In particular, as to Global
Horizons’s Twenty-First Defense, the EEOC argues that Global
Horizons cannot establish the elements of a laches defense.
DISCUSSION
I.
Admission of Material Facts
At the outset, this Court notes that Global Horizons
failed to respond either to the EEOC’s Affirmative Defenses
Motion or to the EEOC’s Affirmative Defenses CSOF.
Global
Horizons’s Motion does address one of the affirmative defenses at
issue in the EEOC’s Affirmative Defenses Motion.
This Court will
therefore construe Global Horizons’s Separate Statement of
6
Undisputed Material Facts in Support of the Global Horizons
Motion, filed November 1, 2013 (“Global Horizons CSOF”), [dkt.
no. 609,] as both the concise statement in support of the Global
Horizons Motion and the response to the EEOC’s Affirmative
Defenses CSOF.
The EEOC did not submit a response to the Global
Horizons CSOF.
Local Rule 56.1(g) states: “For purposes of a motion
for summary judgment, material facts set forth in the moving
party’s concise statement will be deemed admitted unless
controverted by a separate concise statement of the opposing
party.”
Thus, with the exception of the statements of fact in
the Affirmative Defenses CSOF that Global Horizons controverted
in the Global Horizons CSOF, if any, this Court HEREBY DEEMS
ADMITTED all of the statements of fact set forth in the EEOC’s
Affirmative Defenses CSOF.
Similarly, this Court also DEEMS
ADMITTED all statements of fact set forth in the Global Horizons
CSOF, except those that are controverted by the EEOC’s
Affirmative Defenses CSOF.
II.
Global Horizons Motion Regarding Laches Affirmative Defense
The sole argument that Global Horizons raises in its
motion is that, under the circumstances of the case, this Court
should dismiss all of the EEOC’s claims against it based on the
doctrine of laches.
In conjunction with the allegations by Thai
workers, the EEOC issued a subpoena dated April 20, 2006 to
7
Pranee Tubchumpol, who was with Global Horizons’s human resources
office.
[Global Horizons CSOF at ¶ 1, Exh. A.5]
The subpoena
requested various documents, for the period “January 2003 to the
present,” including payroll and recruitment records for employees
hired form outside of the United States.
Exh. A at 3.]
[Global Horizons CSOF,
According to Global Horizons, it responded to the
subpoena in full and cooperated with the EEOC’s request to
interview several Global Horizons employees.
EEOC investigators
conducted the interviews on August 22, 2006.
[Id., Exh. M at 1-2
(summary of 2006 investigation in letter dated July 20, 2009 to
the EEOC from in-house counsel for Global Horizons).]
Global
Horizons submitted a position statement addressing the charges of
discrimination filed against Global Horizons.
[Id., Exh. B
(letter dated 6/30/06 to the EEOC from counsel for Global
Horizons).]
Global Horizons emphasizes that, in 2006, in a matter
unrelated to the EEOC’s investigation, the United States
Department of Labor (“DOL”) revoked Global Horizons’s H-2A
license, effectively barring Global Horizons from the H-2A Visa
5
Global Horizons submitted the Declaration of Mordechai
Orian in Support of the Global Horizons Motion (“Orian
Declaration”). [Dkt. no. 611.] Orian states that, from late
2003 through 2007, he was Global Horizons’s president and chief
executive officer. [Orian Decl. at ¶ 1.] The Orian Declaration
purports to authenticate several of the exhibits cited in the
Global Horizons CSOF, but it does not address all of the
exhibits.
8
Program.6
[Id., Exh. C (7/27/06 DOL Determination and Notice of
Prospective Denial of Temporary Alien Agricultural Labor
Certification for Three Years); id., Exh. D (11/30/06 Order by
Administrative Law Judge making 7/27/06 Determination the final
order of the Secretary of Labor).7]
Global Horizons then stopped
bringing new workers to the United States.
[Global Horizons CSOF
at ¶ 3.]
Global Horizons states that the EEOC did not seek any
further documents in the investigation until 2009, when the EEOC
requested further information.
[Orian Decl., Exh. L (EEOC
Request for Information dated 6/23/09); Global Horizons CSOF,
Exh. M (Global Horizons’s response dated 7/20/09 to 6/23/09
Request for Information), Exh. N (letter dated 8/25/09 to the
EEOC from in-house counsel for Global Horizons).8]
Global
Horizons responded that, in light of the fact that it ceased
6
“The Immigration and Nationality Act (INA) authorizes the
lawful admission into the United States of temporary,
nonimmigrant alien workers to perform agricultural labor or
services that are temporary or seasonal in nature. Such workers
are known as H-2A workers . . . .” [Decl. of Sue Noh & Exhs. in
Supp. of Disparate Treatment Motion, Hostile Work Environment
Motion, & Retaliation Motion, filed 11/1/13 (dkt. no. 628) (“Noh
Merits Decl.”), Exh. 39 (dkt. no. 631-3) at 1 (DOL Wage and Hour
Division, Fact Sheet #26B: Section H-2A of the Immigration and
Nationality Act (INA)).]
7
Exhibit C is dkt. no. 611-3, and Exhibit D is dkt. nos.
638-1, 638-2, and 638-3.
8
Exhibit L is dkt. no. 624, Exhibit M is dkt. no. 625, and
Exhibit N consists of dkt. nos. 638-9 and 638-10.
9
bringing in foreign workers in 2006, it had no other documents to
produce.
[Global Horizons CSOF, Exh. N.]
Global Horizons argues
that, because the EEOC did not issue right-to-sue letters after
the 2006 investigation, the EEOC made “a de facto determination
of no cause[.]”
[Mem. in Supp. of Global Horizons Motion at 3.]
Global Horizons emphasizes that the EEOC did not file the instant
action until five years after the filing of the Kongpia Charge.
[Id. at 4.]
Global Horizons argues that laches is a legitimate,
equitable defense to Title VII claims, and it applies under the
circumstances of this case.
Orian states that Global Horizons
“has no assets and cannot pay its debts and judgments[,]” and
this was the case as far back as June 3, 2008.
[Orian Decl. at
¶ 10; id., Exh. J (Decl. of Mordechai Orian filed 6/3/08 in
Perez-Farias, et al. v. Global Horizons Inc., et al., 05-CV-3061
(RHW) (E.D. Wash.)).]
In September 2010, when Orian was indicted
on criminal charges, Global Horizons had some attorneys on staff
through another of Orian’s corporations, but that corporation is
now defunct.
In September 2010, Global Horizons had “no other
employees, assets, or operations.”
[Orian Decl. at ¶ 12.]
The
attorneys remained on staff to address pending legal matters,
including the appeal of November 30, 2006 decision by the
Secretary of Labor.
9.]
[Mem. in Supp. of Global Horizons Motion at
Orian states that he has been forced to represent Global
10
Horizons as its president in this action “without any financial
resources, support personnel, human resources employees,
paralegal assistance, and without any logistical support
necessary to adequately defend Global [Horizons], due to the
EEOC’s belated and unjust delay and laches in bringing suit
against Global [Horizons].”
[Orian Decl. at ¶ 15.]
Orian states
that he lacks the personal funds to defend this action against
Global Horizons, and Global Horizons already has over
$4,000,000.00 in judgments and tax liens against it in different
jurisdictions.
[Id. at ¶¶ 16-17, Exhs. E-G, I-J, P.]
Global
Horizons also asserts that many of its employees during the
relevant time period would be unavailable to testify at trial.
Thus, Global Horizons argues that it has been severely prejudiced
by the EEOC’s delay in bringing this action.
[Mem. in Supp. of
Global Horizons Motion at 9.]
Global Horizons emphasizes that courts have rejected
the EEOC’s workload as a justification for an unreasonable delay
in bringing a civil action.
[Id. at 11 (some citations omitted)
(citing EEOC v. Alioto Fish Co., 623 F.2d 86, 88 (9th Cir. 1980);
EEOC v. Massey-Ferguson, 622 F.2d 271, 277-78 (9th Cir. 1980)).]
The EEOC argues that the passage of time between the
filing of the Kongpia Charge and the filing of this action did
not result in prejudice to Global Horizons because Global
Horizons received notice of the Kongpia Charge before it ceased
11
operations and while it still had attorneys on staff.
Further,
Global Horizons admits that it was able to preserve data.
The
EEOC emphasizes that Global Horizons has not identified any
specific evidence that Global Horizons allegedly lost over time.
The EEOC also asserts that the investigation was not dormant from
2006 to 2009; the EEOC was pursuing the investigation of other
defendants and examining those entities’ interactions with Global
Horizons.
The EEOC therefore argues that there was no
unreasonable delay or lack of diligence in bringing this action.
The district court has already set forth the applicable
law regarding laches in connection with Global Horizons’s
previous motion to dismiss:9
The Ninth Circuit recognizes “laches or an
unreasonable delay prejudicing the defendant . . .
as a defense to a Title VII action brought by the
EEOC.” Boone v. Mech. Specialties Co., 609 F.2d
956, 959 (9th Cir. 1979); see also Gifford [v.
Atchison, Topeka & Santa Fe Ry. Co.], 685 F.2d
[1149,] 1152 [(9th Cir. 1982)] (“This court has
affirmed the dismissal on the ground of laches of
both private Title VII suits . . . and suits
brought by the EEOC.”). A claim is barred by
laches upon a finding that (1) the plaintiff’s
delay was unexcused or unreasonable, and (2) the
delay caused prejudice to the defendant. See
Boone, 609 F.2d at 958.
9
This case was originally assigned to United States
District Judge David Alan Ezra, but was reassigned to this Court
on November 15, 2012. [Dkt. no. 418.] Global Horizons filed its
Motion to Dismiss Third Amended Complaint on September 18, 2012.
[Dkt. no. 371.] Judge Ezra ruled on Global Horizons’s motion to
dismiss on November 8, 2012 (“11/8/12 Order”). 904 F. Supp. 2d
1074.
12
Determining whether delay was unexcused or
unreasonable and whether prejudice ensued
necessarily demands “a close evaluation of all the
particular facts in a case.” Kling v. Hallmark
Cards Inc., 225 F.3d 1030, 1041 (9th Cir. 2000).
As a result, a claim is not easily disposed of at
the motion to dismiss stage based on a defense of
laches. See Kourtis v. Cameron, 419 F.3d 989,
1000 (9th Cir. 2005) (overruled on other grounds
by Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct.
2161, 171 L. Ed. 2d 155 (2008)) (concluding that a
laches defense was premature at the
motion-to-dismiss phase because of the difficulty
of establishing such a defense based exclusively
upon the factual allegations set forth in the
complaint); cf. Bratton v. Bethlehem Steel Corp.,
649 F.2d 658, 666–67 (9th Cir. 1980) (“Laches
questions are seldom susceptible of resolution by
summary judgment, because where laches is raised
as a defense the factual issues . . . involved can
rarely be resolved without some preliminary
evidentiary inquiry.”) (internal quotation marks
and citations omitted).
The Court concludes that it is not clear on
the face of the complaint that the EEOC’s delay in
bringing suit was unreasonable or unexcused, and
therefore declines to find that the EEOC’s claims
are barred by laches at this juncture. Five years
lapsed between the date a charge was filed against
Global with the EEOC and the date the EEOC
instituted this suit. The passage of five years
does not by itself establish unreasonable delay.
See, e.g., EEOC v. Liberty Loan Corp., 584 F.2d
853, 857 (8th Cir. 1978) (“We are unwilling to say
that any set length of delay is per se
unreasonable, but rather look to the facts of each
case to determine reasonableness.”); EEOC v.
Autozone, Inc., 258 F. Supp. 2d 822, 826–27 (W.D.
Tenn. 2003) (“[T]he reasonableness of the EEOC’s
delay does not depend on the total amount of time
between filings, but on the EEOC’s reason for the
delay.”); EEOC v. Peterson, Howell & Heather,
Inc., 702 F. Supp. 1213, 1222 (D. Md. 1989) (“This
Court, consistent with other courts, refuses to
find any specific period of delay by the EEOC
unreasonable per se.”). It is not impossible that
the EEOC could advance reasonable justifications
13
for a delay of five years. See Gifford, 685 F.2d
at 1152 (holding that the district court did not
err in denying summary judgment on the basis of
laches where plaintiff submitted an extensive
affidavit with excuses for 9–year delay).
Moreover, Defendant Global has not adequately
demonstrated prejudice. “Courts have recognized
two chief forms of prejudice in the laches
context—evidentiary and expectations-based.”
Danjaq LLC v. Sony Corp., 263 F.3d 942, 955 (9th
Cir. 2001). The former “includes such things as
lost, stale or degraded evidence, or witnesses
whose memories have faded or who have died.” Id.
The latter “occurs when a defendant ‘took actions
or suffered consequences that it would not have,
had the plaintiff brought suit promptly.’”
Evergreen Safety Council v. RSA Network Inc., 697
F.3d 1221, 1227 (9th Cir. 2012) (quoting Danjaq,
263 F.3d at 955). Global has failed to establish
either with its allegation that it has no Human
Resources department to facilitate the collection
of evidence; its complaint that the CEO, “besieged
by a recently dismissed criminal indictment,”
cannot possibly respond to the TAC’s allegations
himself; and its claim that “[p]otentially many of
[Global’s] key employees . . . would not be able
or available to testify at trial.” Global’s claim
that the fact of delay creates a presumption of
prejudice is incorrect. See Bratton, 649 F.2d at
667 n.8 (observing that its statement to that
effect in Boone, 609 F.2d at 958, was dictum). In
fact, the Ninth Circuit has indicated that
“[w]hatever may be an appropriate use of
presumptions in laches cases not involving Title
VII, we believe that prejudice should not be
lightly presumed from delay in Title VII cases.”
Id.
EEOC v. Global Horizons, Inc., 904 F. Supp. 2d 1074, 1094-96 (D.
Hawai`i 2012) (some alterations in Global Horizons) (footnotes
and some citations omitted).
The district court therefore denied
Global Horizons’s motion to dismiss the Third Amended Complaint.
Id. at 1096.
14
First, as to Global Horizons’s argument that the EEOC
made a “de facto determination of no cause” because it failed to
issue right-to-sue letters by 2009, this Court notes that Global
Horizons does not cite any legal authority in support of this
argument.
Moreover, this Court was not able to find any
authority supporting Global Horizons’s position.
It is well-
established that, “[t]he EEOC is not subject to any statute of
limitations restriction on its ability ‘to file suit in a federal
court.’”
EEOC v. Catholic Healthcare W., 530 F. Supp. 2d 1096,
1107 (C.D. Cal. 2008) (quoting Occidental Life Ins. Co. of Cal.
v. EEOC, 432 U.S. 355, 366, 97 S. Ct. 2447, 53 L. Ed. 2d 402
(1977)).
This Court therefore rejects Global Horizons’s argument
that the EEOC’s failure to issue right-to-sue letters by 2009
precluded the EEOC from bringing this action in 2011.
The remainder of the arguments that Global Horizons now
raises in support of its motion are the same as the arguments
that the district court rejected in denying Global Horizons’s
motion to dismiss the Third Amended Complaint.
Global Horizons
now argues that the EEOC’s delay in bringing this civil action
was unexcused or unreasonable because five years elapsed between
the start of the investigation and the filing of this action.
See, e.g., Mem. in Supp. of Global Horizons’s Motion at 8 & 9.
In denying Global Horizons’s motion to dismiss, the district
court ruled that “[t]he passage of five years does not by itself
15
establish unreasonable delay.”
at 1095.
Global Horizons, 904 F. Supp. 2d
In support of its position that the five-year delay is
unexcusable or unreasonable, Global Horizons asserts that,
between 2006 and 2009, there was “[c]omplete inaction by the
EEOC[.]”
[Global Horizons CSOF at ¶ 5.]
Global Horizons,
however, does not identify any evidence supporting this
assertion.
The EEOC argues that the record in this case
establishes that, from 2006 to 2009, the EEOC continued
investigating other entities involved in this case.
in Opp. to Global Horizons Motion at 3.]
[EEOC Mem.
The EEOC has introduced
correspondence from that time period showing that the EEOC was
actively investigating the matter, including, inter alia:
inspecting documents from Defendant Maui Pineapple Company, Ltd.
(“Maui Pineapple”); issuing subpoenas to Maui Pineapple; and
conducting on-site interviews at the Maui Pineapple farm.
[Decl.
of Sue Noh in Supp. of the EEOC’s Motion for Partial Summary
Judgment on Defendant Maui Pineapple Company, Ltd.’s Affirmative
Defenses 1, 3, 4, 6, 7, 8, 9, 10, 11, 14, 17, 18, 20, 21, 22, 23,
24, 25, 26, 27, 29, 30, 31 and 32, filed 11/1/13 (dkt. no. 591)
(“Noh Maui Pineapple Decl.”), Exh. 4-6.]
Global Horizons did not
respond to the EEOC’s argument that the five-year delay from the
start of the investigation to the filing of the complaint was
reasonable because the EEOC was actively investigating different
aspects of this case during that time.
16
In considering the Global Horizons Motion, this Court
must view the evidence in the light most favorable to the EEOC.
See Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th
Cir. 2006).
Under that standard, this Court finds that there are
no genuine issues of material fact as to the reasonableness of
the five-year delay between the start of the investigation and
the filing of the original complaint in this action.
This Court
cannot conclude that Global Horizons has established that, as a
matter of law, the five-year delay was unexcusable or
unreasonable under the circumstances of this case.
Insofar as Global Horizons must establish both that,
1) the delay was unreasonable or unexcusable, and 2) Global
Horizons suffered prejudice as a result of the delay, this Court
need not reach the issue of whether the delay was prejudicial.
This Court, however, will address the issue of prejudice for the
sake of completeness.
Global Horizons argues that it no longer
has any employees, and thus has no one but its principal,
Mordechai Orian, to respond to this action, and it has no assets
to fund its defense.
Global Horizons also makes the general
claim that many of its prior employees, who would have been key
witnesses, may potentially be unavailable.
Global Horizons does
not identify any specific potential witnesses who are unavailable
due to the amount of time that has passed since the EEOC began
its investigation.
Again without citing legal authority, Global
17
Horizons asserts that, under the circumstances of this case,
there is a presumption that it has suffered prejudice as a result
of the lapse of time.
at 9-10.]
[Mem. in Supp. of Global Horizons Motion
As previously noted, this district court has already
rejected Global Horizons’s argument that the circumstances
described in the Global Horizons Motion, if proven, would
establish adequate prejudice for purposes of a laches affirmative
defense.
11/8/12 Order, 904 F. Supp. 2d at 1095-96.
For the
same reasons, this Court cannot find that Global Horizons is
entitled to summary judgment on the issue of prejudice.
Insofar
as Global Horizons has failed to establish either of the required
elements of the laches defense, this Court DENIES the Global
Horizons Motion.
III. The EEOC’s Affirmative Defenses Motion
The EEOC’s Affirmative Defenses Motion addresses Global
Horizons’s Third, Fourth, Fifth, Ninth, Twenty-First, TwentySecond, Twenty-Fourth, Twenty-Fifth, Twenty-Ninth, Thirtieth,
Thirty-Seventh, Thirty-Eighth, Thirty-Ninth, Fortieth, FortySecond, Forty-Fourth, and Forty-Sixth Defenses.
A.
Failure to State a Claim
Global Horizons’s Third Defense asserts that the Third
Amended Complaint “fails to state a claim upon which relief can
be granted.”
[Answer at ¶ 94.]
First, this district court has
recognized that a defense asserting that the complaint fails to
18
state a claim is not an affirmative defense.
See, e.g.,
Walker-Cook v. Integrated Health Res., LLC, Civil No. 12–00146
ACK–RLP, 2012 WL 4461159, at *2 (D. Hawai`i Aug. 10, 2012).
In
Walker-Cook, the district court stated:
“A defense which demonstrates that plaintiff has
not met its burden of proof is not an affirmative
defense.” Zivkovic v. S. Cal. Edison Co., 302
F.3d 1080, 1088 (9th Cir. 2002) (citing
Flav–O–Rich v. Rawson Food Serv., Inc., 846 F.2d
1343, 1349 (11th Cir. 1988)). Defenses that
negate an element of the plaintiffs’ prima facie
case “are excluded from the definition of
affirmative defense in Federal Rule of Civil
Procedure 8(c).” Flav–O–Rich, 846 F.2d at 1349
(citing Ford Motor Co. v. Trans. Indem. Co., 795
F.2d 538, 546 (6th Cir. 1986)).
Id.
Even assuming, arguendo, that the argument that the
plaintiff failed to state a claim can be an affirmative defense,
this Court emphasizes that Global Horizons filed a motion to
dismiss the Third Amended Complaint.
[Dkt. no. 371.]
The
11/8/12 Order denied Global Horizons’s motion to dismiss, insofar
as the district court concluded that all four counts of the Third
Amended Complaint pled plausible claims for relief.
904 F. Supp.
2d at 1085-89; see also Ashcroft v. Iqbal, 555 U.S. 662, 678
(2009) (“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”
555 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570
(2007))).
Based on the district court’s ruling in the 11/8/12
19
Order, this Court finds that there are no genuine issues of
material fact as to Global Horizons’s Third Defense, and this
Court concludes that the Third Defense fails as a matter of law.
This Court therefore GRANTS the EEOC’s Affirmative Defenses
Motion as to Global Horizons’s Third Defense.
B.
Conditions Precedent to Filing Suit
Global Horizons’s Fourth and Forty-Sixth Defenses
address the conditions precedent to the EEOC’s filing of the
instant case.10
This district court has stated that:
Prior to bringing a Title VII suit, the EEOC
must satisfy certain conditions precedent: (1) the
EEOC must receive a charge of an unlawful
employment practice; (2) the EEOC must notify the
employer of the alleged wrongful act and conduct
an investigation to determine whether there is
reasonable cause to believe the charge is true;
(3) the EEOC must engage in “informal methods of
conference, conciliation, and persuasion” to
eliminate the alleged unlawful practices; and
(4) if the conciliation efforts are unsuccessful,
the EEOC must notify the employer in writing.
EEOC v. Pierce Packing Co., 669 F.2d 605, 607 (9th
Cir. 1982) (quoting 42 U.S.C. § 2000e–5) . . . .
EEOC v. NCL Am., Inc., 536 F. Supp. 2d 1216, 1220 (D. Hawai`i
2008).
10
The EEOC includes Global Horizons’s Fifth Defense in its
discussion of the defenses regarding conditions precedent, but
Global Horizons’s Fifth Defense asserts lack of subject matter
jurisdiction. The United States Supreme Court has abrogated the
Ninth Circuit’s rule that the EEOC’s conditions precedent to suit
are jurisdictional. See, e.g., EEOC v. Swissport Fueling, Inc.,
916 F. Supp. 2d 1005, 1035 n.15 (D. Ariz. 2013) (discussing
Pierce Packing, 669 F.2d at 608, and Arbaugh v. Y & H Corp., 546
U.S. 500, 503 (2006)). This Court will therefore discuss the
Fifth Defense in a separate section.
20
The first two conditions precedent are not in dispute;
the EEOC received a charge of discrimination against Global
Horizons from Marut Kongpia, and the EEOC served notice of the
charges on Global Horizons.
2.]
[Affirmative Defenses CSOF at ¶¶ 1-
Global Horizons’s Fourth Defense alleges that the EEOC
failed to conciliate in good faith, and Global Horizons’s FortySixth Defense alleges that the EEOC did not conduct an adequate
investigation.
The EEOC has stated that, “the EEOC conducted a
thorough investigation, providing Global [Horizons] an
opportunity to provide all information relevant to its position
on the charges.
During the EEOC’s investigation, the EEOC
interviewed numerous Global [Horizons] employees.”
[Id. at ¶ 2.]
Insofar as the Global Horizons CSOF did not directly respond to
paragraph 2 of the Affirmative Defenses CSOF, Global Horizons has
admitted to the facts in paragraph 2.
Further, the Global
Horizons CSOF itself acknowledges that, in 2006, the EEOC
investigated allegations by Thai workers.
at ¶ 1.]
[Global Horizons CSOF
In NCL America, this district court stated:
One court has concluded that, under Pierce
Packing Co., only “some investigation” of the
charge filed is required. EEOC v. Nestle Co.,
1982 WL 234 at *1 (E.D. Cal. Mar. 23, 1982). In
Nestle, the EEOC only investigated gender
discrimination in “blue-collar” positions.
Nevertheless, when the EEOC brought suit, it
expanded the scope of its action to include gender
discrimination in white-collar positions. The
court concluded that the investigation was
21
adequate, noting that the employer had not
provided any “discernible standard” for
determining the adequacy of an EEOC investigation.
Id.
This court has not found Ninth Circuit
authority addressing challenges to the adequacy of
an EEOC investigation. Recently, however, a
United States District Court in the District of
Nevada concluded that “an employer may not
litigate the adequacy of the EEOC’s investigation
and determination.” EEOC v. Gold River Operating
Corp., 2007 WL 983853 at *3 (D. Nev. Mar. 30,
2007). In doing so, the court looked to decisions
of other circuits. The Sixth Circuit, for
example, has previously held that courts should
not look to the sufficiency of an EEOC
investigation, as the investigation does not go to
the merits of the litigation, and only puts the
employer on notice and provides a background for
conciliation efforts. See EEOC v. Keco Indus.,
Inc., 748 F.2d 1097, 1100 (6th Cir. 1984).
Similarly, the Seventh Circuit has stated that a
“determination of reasonable cause is only an
administrative prerequisite to a court action and
has no legally binding significance in subsequent
litigation.” EEOC v. Harvey L. Walner & Assocs.,
91 F.3d 963, 968 n.3 (7th Cir. 1996); see also
EEOC v. Chicago Miniature Lamp Works, 526 F. Supp.
974, 975 (N.D. Ill. 1981) (noting that allowing a
defendant to challenge the EEOC’s reasonable cause
determination would “effectively make every Title
VII suit a two-step action”).
536 F. Supp. 2d at 1220-21 (emphasis in NCL Am.).
This Court
agrees with the analysis in NCL America that only some
investigation of an EEOC charge is required.
Based on Global
Horizons’s admission, there is no dispute of material fact as to
the issue of whether the EEOC investigated the charges of
discrimination against Global Horizons.
Based on the undisputed
facts, this Court concludes that, as a matter of law, the EEOC
22
satisfied the condition precedent of investigating the charges
against Global Horizons.
This Court therefore GRANTS the
Affirmative Defenses Motion as to Global Horizons’s Fourth
Defense.
As to the requirement that the EEOC conciliate in good
faith, this Court has observed that the Ninth Circuit has not
provided a standard for district courts to apply when evaluating
whether the EEOC met its statutory obligation to conciliate in
good faith, but that several other circuits have adopted a threepart test.
EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019,
1044 (D. Hawai`i 2012).
This Court observed that some district
courts within the Ninth Circuit have applied the deferential
approach, and others have applied the three-part test, but this
Court stated that it was not necessary to decide the appropriate
standard because, under either standard, the EEOC failed to
conciliate in good faith in that case.
Id. at 1044-45.
In the instant case, Global Horizons has admitted that
the EEOC “invited Global [Horizons] to participate in
conciliation to resolve the charges without requiring litigation;
however, the EEOC’s efforts at conciliation were unsuccessful.”
[Affirmative Defenses CSOF at ¶ 4.]
The EEOC also submitted
letters that it sent to Global Horizons regarding the
conciliation process.
[Noh Affirmative Defenses Decl., Exh. 9.]
Global Horizons has not presented any evidence suggesting that
23
the EEOC acted in bad faith during the conciliation process.
This Court therefore finds that there is no dispute of material
fact as to Global Horizons’s Forty-Sixth Defense, and this Court
concludes that, under either the deferential approach or the
three-part test, the EEOC complied with the requirement to
conciliate in good faith.
This Court GRANTS the Affirmative
Defenses Motion as to Global Horizons’s Forty-Sixth Defense.
C.
Subject Matter Jurisdiction
Global Horizons’s Fifth Defense asserts a lack of
subject matter jurisdiction.
Although the EEOC erroneously
argues that this Court’s ruling granting summary judgment in the
EEOC’s favor on the conditions precedent defenses requires an
award of summary judgment in favor of the EEOC as to Global
Horizons’s Fifth Defense, this Court has independently considered
the issue of subject matter jurisdiction.
See Kwai Fun Wong v.
Beebe, 732 F.3d 1030, 1035-36 (9th Cir. 2013) (en banc) (“A
court’s ‘[s]ubject-matter jurisdiction can never be waived or
forfeited,’ ‘objections [to the court’s jurisdiction] may be
resurrected at any point in the litigation,’ and courts are
obligated to consider sua sponte requirements that ‘go[] to
subject-matter jurisdiction.’” (alterations in Wong) (some
citations omitted) (quoting Gonzalez v. Thaler, 132 S. Ct. 641,
648 (2012))).
This Court concludes that, as a general matter,
this Court has subject matter jurisdiction over the EEOC’s claims
24
against Global Horizons, pursuant to 28 U.S.C. §§ 1331 and 1345.
This Court therefore GRANTS the Affirmative Defenses Motion as to
Global Horizons’s Fifth Defense.
This Court, however, emphasizes
that its ruling that it has subject matter jurisdiction over this
action in general does not constitute a ruling on the issues
raised in the remainder of Global Horizons’s defenses.
D.
Defenses Related to Timeliness
Global Horizons’s Ninth Defense asserts that the EEOC’s
claims on behalf of the Class members are barred by the statute
of limitations.
As previously noted, Global Horizons’s Twenty-
First Defense is laches.
Global Horizons’s Twenty-Second Defense
asserts that “any factual assertions or theories outside timely
or appropriate Charges of Discrimination are barred.”
[Answer at
¶ 113.]
As previously noted, there is no statute of limitations
restricting the EEOC’s “ability to file suit in a federal court.”
Catholic Healthcare, 530 F. Supp. 2d at 1107 (citation and
internal quotation marks omitted).
When the EEOC brings claims
pursuant to § 706 of Title VII, however, the following provision
applies:
A charge under this section shall be filed within
one hundred and eighty days after the alleged
unlawful employment practice occurred . . . ,
except that in a case of an unlawful employment
practice with respect to which the person
aggrieved has initially instituted proceedings
with a State or local agency with authority to
grant or seek relief from such practice or to
25
institute criminal proceedings with respect
thereto upon receiving notice thereof, such charge
shall be filed by or on behalf of the person
aggrieved within three hundred days after the
alleged unlawful employment practice
occurred . . . .
42 U.S.C. § 2000e-5(e)(1).
As previously noted by the district
court in this case, the 300-day period applies in Hawai`i because
Hawai`i is a “worksharing” state.
Global Horizons, 904 F. Supp.
at 1090 n.2 (some citations omitted) (citing EEOC v. NCL America,
Inc., 504 F. Supp. 2d 1008, 1010 (D. Haw. 2007) (“Hawaii is a
‘worksharing’ state such that administrative claims with the EEOC
are deemed ‘dual-filed’ with the Hawaii Civil Rights Commission
(“HCRC”) (or vice-versa).”)).
The district court also ruled
that, in addition to the EEOC’s claims pursuant to § 706, the
300-day charge-filing limitation also applies to the EEOC’s
pattern or practice claims brought pursuant to § 707 of
Title VII.
Specifically, the district court stated:
Discrete acts of discrimination, such as a
retaliatory transfer or termination, must have
occurred within 300 days of the date a charge was
filed in order to be actionable. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122
S. Ct. 2061, 153 L. Ed. 2d 106 (2002); Cherosky v.
Henderson, 330 F.3d 1243, 1245–46 (9th Cir. 2003)
(“Morgan makes clear that claims based on discrete
acts are only timely where such acts occurred
within the limitations period.”). Plaintiff’s
hostile work environment claims, on the other
hand, will survive as long as all acts
constituting the claim are part of the same
unlawful employment practice and any act occurred
within the 300–day charge-filing period. Morgan,
536 U.S. at 122, 122 S. Ct. 2061; see also Porter
v. Cal. Dep’t of Corr., 419 F.3d 885, 893 (9th
26
Cir. 2005) (applying Morgan to a hostile work
environment claim).
Id. at 1093-94.
The Affirmative Defenses Motion acknowledges the 300day filing-limitation, but argues that “[h]ere, Charges were
filed within 300 days of the last discriminatory act.
Moreover,
even if the charges were not timely as to the first act, the
discrimination was ongoing, so the case would not be barred by
any statute of limitations.”
[Mem. in Supp. of Affirmative
Defenses Motion at 16 (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116-119 (2002) (hostile work environment
claim not time barred if any act of harassment occurred within
the limitations period)).]
The Affirmative Defenses Motion,
however, does not address the issue of incidences of alleged
discrimination that were discrete acts and thus are subject to
the 300-day filing limitation.
This Court therefore finds that
the EEOC has not carried its burden on summary judgment as to
Global Horizons’s Ninth and Twenty-Second Defenses.
The EEOC’s
Affirmative Defenses Motion is DENIED WITHOUT PREJUDICE as to
Global Horizons’s Ninth and Twenty-Second Defenses.
The EEOC also seeks summary judgment as to Global
Horizons’s laches defense.
This Court set forth the applicable
law regarding Global Horizons’s laches defense supra Section II.
In considering whether the EEOC is entitled to summary judgment
as to Global Horizons’s laches defense, this Court must view the
27
record in the light most favorable to Global Horizons.
Miller, 454 F.3d at 988.
See
Even under that standard, this Court
finds that Global Horizons has not identified sufficient evidence
to raise a genuine issue of fact as to the elements of its laches
defense.
This Court therefore finds that there are no genuine
issues of material fact as to Global Horizons’s laches defense,
and, based on the analysis set forth in Section II, this Court
concludes that the EEOC is entitled to judgment as a matter of
law as to Global Horizons’s laches defense.
This Court GRANTS
the Affirmative Defenses Motion as to Global Horizons’s TwentyFirst Defense.
E.
Standing
Global Horizons’s Twenty-Fourth Defense asserts that
the EEOC “lacks standing to pursue claims on behalf of
individuals that have not consented to representation by” the
EEOC.
[Answer at ¶ 115.]
First, this Court notes that some district courts have
recognized that, when the EEOC brings a Title VII action on
behalf of a class, the EEOC does not have to enter into an
attorney-client relationship with each class member.
See, e.g.,
EEOC v. Collegeville/Imagineering Ent., No. CV–05–3033 PHX–DGC,
2007 WL 158735, at *1-2 (D. Ariz. Jan. 17, 2007) (some citations
omitted) (discussing EEOC v. Albertson’s, Inc., No. CV–06–1273,
2006 U.S. Dist. LEXIS 72378, at *18 (D. Colo. October 4, 2006)).
28
Further, in EEOC v. Dinuba Medical Clinic, the Ninth
Circuit recognized that, regardless of whether it seeks equitable
relief or damages, “the EEOC may seek classwide relief without
being certified as a class representative under [Fed. R. Civ. P.]
23.”
222 F.3d 580, 587-88 (9th Cir. 2000) (discussing Gen. Tel.
Co. v. EEOC, 446 U.S. 318, 320 (1980)).
Based on these legal principles, this Court concludes
that Global Horizons’s Twenty-Fourth Defense fails as a matter of
law.
This Court therefore GRANTS the Affirmative Defenses Motion
as to Global Horizons’s Twenty-Fourth Defense.
F.
Scope of the Charges and the EEOC Investigation
Global Horizons’s Twenty-Fifth Defense is that the
EEOC’s claims “are barred because they are beyond the scope of
any administrative charge or the EEOC’s investigation thereof,
were not subject to administrative, investigation, or
conciliation processes, and/or were not included in any
investigation and/or determination by the EEOC.”
¶ 116.]
[Answer at
This defense fails as a matter of law because courts
construe charges filed with the EEOC liberally.
Josephs v.
Pacific Bell, 443 F.3d 1050, 1061 (9th Cir. 2006).
Further, the
Ninth Circuit has held that: “Subject matter jurisdiction extends
over all allegations of discrimination that either fell within
the scope of the EEOC’s actual investigation or an EEOC
investigation which can reasonably be expected to grow out of the
29
charge of discrimination.”
marks omitted).
Id. at 1062 (citations and quotation
This Court therefore GRANTS the Affirmative
Defenses Motion as to Global Horizons’s Twenty-Fifth Defense.
G.
Liability for Actions of Non-employees
Global Horizons’s Twenty-Ninth Defense asserts that it
is neither responsible nor liable for the actions of nonemployees.
To the extent that Global Horizons contends that an
employer is never liable for the actions of non-employees, the
defense fails as a matter of law.
In the Ninth Circuit, employers are liable
for harassing conduct by non-employees “where the
employer either ratifies or acquiesces in the
harassment by not taking immediate and/or
corrective actions when it knew or should have
known of the conduct.” Folkerson v. Circus Circus
Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997);
see also Little v. Windermere Relocation, Inc.,
301 F.3d 958, 968 (9th Cir. 2002). In recognizing
that employers may be liable for third-party
conduct, we . . . have relied in part upon a
regulation of the Equal Employment Opportunity
Commission that provides that employers may be
held liable for the acts of non-employees where
the employer “knows or should have known of the
conduct and fails to take immediate and
appropriate corrective action.” 29 C.F.R.
§ 1604.11(e). This theory of liability is
grounded not in the harassing act itself—i.e.,
inmate misconduct—but rather in the employer's
“negligence and ratification” of the harassment
through its failure to take appropriate and
reasonable responsive action. See Galdamez v.
Potter, 415 F.3d 1015, 1022 (9th Cir. 2005).
Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir. 2006) (some
citations omitted).
30
The Third Amended Complaint alleges that Global
Horizons is jointly liable with the farm defendants.
Amended Complaint at ¶ 74.]
[Third
The primary farm defendant remaining
at issue in this action is Maui Pineapple.
Neither the
Affirmative Defenses Motion nor the Affirmative Defenses CSOF,
however, addresses what evidence establishes that Global Horizons
knew or should have known of the conduct of Maui Pineapple’s
personnel and failed to take immediate and appropriate corrective
action.11
This Court therefore concludes that the EEOC has
failed to carry its burden on summary judgment as to Global
Horizons’s Twenty-Ninth Defense.
The Affirmative Defenses Motion
is DENIED WITHOUT PREJUDICE as to Global Horizons’s Twenty-Ninth
Defense.
H.
Proximate Cause and Scope of Employment
Global Horizons’s Thirtieth Defense is that the EEOC’s
claims are barred because Global Horizons’s “conduct was not a
proximate cause of the alleged injuries.”
[Answer at ¶ 121.]
Global Horizons’s Fortieth Defense is that the EEOC’s claims are
barred because “no improper or unlawful acts occurred within the
course and scope of the employment or agency of any employee or
11
Although the EEOC submitted three sets of requests for
admissions which it served on Global Horizons, [Noh Affirmative
Defenses Decl., Exhs. 1-3,] and the Affirmative Defenses CSOF
states that Global Horizons never responded to these requests,
[Affirmative Defenses CSOF at ¶ 8,] the EEOC has not identified
any specific admissions establishing Global Horizons’s liability
for Maui Pineapple’s conduct.
31
agent of [Global Horizons], and [Global Horizons] did not
authorize, condone, or ratify any illegal or tortious acts.”
[Id. at ¶ 131.]
In the Affirmative Defenses Motion, the EEOC argues
that these defenses are inapplicable to the claims in the instant
case because these defenses only apply in tort cases.
Supp. of Affirmative Defenses Motion at 22.]
[Mem. in
The proximate cause
doctrine is applicable in employment discrimination cases
premised upon the subordinate bias theory or the “cat’s paw”
theory of liability.12
See, e.g., Lobato v. New Mexico Env’t
Dep’t, 733 F.3d 1283, 1294-95 (10th Cir. 2013); Johnson v.
Koppers, Inc., 726 F.3d 910, 914 (7th Cir. 2013).
First, Global
Horizons has not identified any evidence indicating that such
theories of liability are at issue in this case.
Further, even
if those theories are at issue in this case, proximate cause will
be an element of the EEOC’s prima facie case for the claims based
upon those theories, and defenses negating an element of a
plaintiff’s prima facie case are not affirmative defenses.
Walker-Cook, 2012 WL 4461159, at *2.
This Court therefore
concludes that Global Horizons’s Thirtieth Defense, as an
12
“The cat’s paw theory applies in the employment
discrimination context when a biased subordinate who lacks
decision-making power uses the formal decision maker as a dupe in
a deliberate scheme to trigger a discriminatory employment
action.” Johnson v. Koppers, 726 F.3d 910, 914 (7th Cir. 2013)
(citations and internal quotation marks omitted).
32
affirmative defense, fails as a matter of law.
The Affirmative
Defenses Motion is GRANTED as to Global Horizons’s Thirtieth
Defense.
As to Global Horizons’s Fortieth Defense, the EEOC does
not cite any legal authority supporting its argument that the
beyond-the-scope-of-employment defense is not available in
employment discrimination actions by the EEOC.
This failure,
however, is not fatal to the EEOC’s argument.
Even assuming,
arguendo, that such a defense was available in this type of case,
Global Horizons has not identified any facts that would put this
defense at issue in this case.
This Court therefore finds that
there is no genuine issue of material fact as to Global
Horizons’s Fortieth Defense, and this Court concludes that the
EEOC is entitled to judgment as a matter of law.
The Affirmative
Defenses Motion is GRANTED as to Global Horizons’s Fortieth
Defense.
I.
Fact-Specific Defenses
Global Horizons’s Thirty-Seventh Defense asserts that
the claims in this case are barred because the EEOC, the charging
parties, the claimants, and the Class members failed to act in
good faith and/or acted in an unreasonable manner.
Global
Horizons’s Thirty-Eighth Defense asserts that the claims in this
case are barred because the EEOC, the charging parties, the
claimants, and the Class members committed fraud, made
33
misrepresentations, or otherwise engaged in wrongful conduct.
Global Horizons’s Thirty-Ninth Defense apparently asserts
contributory negligence.
Global Horizons’s Forty-Fourth Defense
asserts that the claims in this case “are barred under the
doctrines of waiver, estoppel, unclean hands, lack of intent, and
any other affirmative defenses that may be uncovered through
discovery or trial.”
[Answer at ¶ 135.]
First, as to Global Horizons’s attempt in the FortyFourth Defense to preserve any other affirmative defenses not
raised in Global Horizons’s Answer, this district court has
observed that,
the Ninth Circuit has described the pleading
standard for affirmative defenses as a “fair
notice” standard, Wyshak v. City Nat’l Bank, 607
F.2d 824, 827 (9th Cir. 1979), and has continued
to apply this standard since Twombly and Iqbal.
See Simmons v. Navajo County, Ariz., 609 F.3d
1011, 1023 (9th Cir. 2010); see also Kohler [v.
Islands Rests., LP], 280 F.R.D. [560,] 566 [(S.D.
Cal. 2012)].
Cape Flattery Ltd. v. Titan Maritime LLC, Civil No. 08–00482
JMS/KSC, 2012 WL 3113168, at *10 (D. Hawai`i July 31, 2012).
Global Horizons did not amend its Answer to the Third
Amended Complaint.
This Court therefore concludes that, standing
alone, the Forty-Fourth Defense’s reference to unspecified
defenses that may be discovered during the litigation was not
sufficient to give the EEOC fair notice of the defenses which
Global Horizons intends to rely upon but which are not enumerated
34
in Global Horizons’s Answer to the Third Amended Complaint.
The remainder of the defenses addressed in this section
are fact-specific defenses, and Global Horizons has not
identified any evidence which indicates that these defenses may
be applicable under the facts of this case.
This Court therefore
finds that there is no genuine issue of material fact as to the
unsubstantiated allegations in the Answer of bad faith, fraud,
misrepresentations, other wrongful conduct, contributory
negligence, waiver, estoppel, unclean hands, and lack of intent.
This Court concludes that the EEOC is entitled to judgment as a
matter of law as to these defenses.
The Affirmative Defenses
Motion is GRANTED as to Global Horizons’s Thirty-Seventh Defense,
Thirty-Eighth Defense, Thirty-Ninth Defense, and Forty-Fourth
Defense.
J.
Punitive Damages
Finally, the EEOC seeks summary judgment on Global
Horizons’s Forty-Second Defense, which alleges that the United
States Constitution bars the EEOC’s request for punitive damages.
This defense fails as a matter of law because 42 U.S.C. § 1981a
expressly authorizes a complaining party in a § 2000e-5 claim to
seek punitive damages against a respondent, “other than a
government, government agency or political subdivision[.]”
42
U.S.C. § 2000e-5(a)(1), (b)(1); see also, e.g., Dinuba Med.
Clinic, 222 F.3d at 587 (“Although, prior to 1991, the EEOC could
35
only seek equitable relief through a § 706 enforcement action, it
is now empowered to seek compensatory and punitive damages in
addition to equitable relief.” (some citations omitted) (citing
42 U.S.C. § 1981a(a)-(d) (1994)).
This Court therefore GRANTS
the Affirmative Defenses Motion as to Global Horizons’s FortySecond Defense.
IV.
Summary of Defenses
In sum, this Court DENIES summary judgment to the EEOC
as to Global Horizons’s Ninth, Twenty-Second, and Twenty-Ninth
Defenses.
The denial is WITHOUT PREJUDICE.
This Court also
DENIES summary judgment to Global Horizons as to its Twenty-First
Defense.
This Court GRANTS summary judgment in favor of the EEOC
as to Global Horizons’s Third, Fourth, Fifth, Twenty-First,
Twenty-Fourth, Twenty-Fifth, Thirtieth, Thirty-Seventh, ThirtyEighth, Thirty-Ninth, Fortieth, Forty-Second, Forty-Fourth, and
Forty-Sixth Defenses.
CONCLUSION
On the basis of the foregoing, the EEOC’s Motion for
Partial Summary Judgment on Defendant Global Horizons, Inc. d/b/a
Global Horizons Manpower Inc.’s Affirmative Defenses, filed
November 1, 2013 is HEREBY GRANTED IN PART AND DENIED IN PART,
and Global Horizons’s Motion for Summary Judgment, filed
November 1, 2013, is HEREBY DENIED.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 28, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
EEOC VS. GLOBAL HORIZONS, INC., ET AL; CIVIL 11-00257 LEK-RLP;
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT ON DEFENDANT GLOBAL HORIZONS, INC.
D/B/A/ GLOBAL HORIZONS MANPOWER INC.’S AFFIRMATIVE DEFENSES AND
DENYING GLOBAL HORIZONS’S MOTION FOR SUMMARY JUDGMENT
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