EEOC v. Blockbuster Inc.

Filing 52

FOURTH PARTY COMPLAINT against Express Personnel, Kevin Andrew Lenear, Lenco, Inc., filed by Venturi Staffing Partners.(Hemmendinger, Eric)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
BLOCKBUSTER INC.,
Defendant and Third-Party
Plaintiff,
v.
VENTURI STAFFING PARTNERS,
Third-Party Defendant and
Fourth-Party Plaintiff,
v.
KEVIN ANDREW LENEAR, LENCO,
INC., and EXPRESS SERVICES, INC.,
dba EXPRESS PERSONNEL SERVICES,
EXPRESS PERSONNEL, AND EXPRESS
PERSONNEL OF TOWSON

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Case No. RWT-07-CV-2612
[Judge Roger W. Titus]
[Magistrate Judge Charles B. Day]

FOURTH-PARTY PLAINTIFF
VENTURI STAFFING PARTNERS'
COMPLAINT

Fourth-Party Defendants.

Third-Party Defendant/Fourth-Party Plaintiff Venturi Staffing Partners, by and through
its attorneys, brings this Fourth-Party Complaint against Fourth-Party Defendants Kevin Andrew
Lenear, Lenco, Inc., and Express Services, Inc., dba Express Personnel Services, Express
Personnel, and Express Personnel of Towson.

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THE PARTIES
1.

Venturi Staffing Partners ("Venturi") is a Delaware corporation and, during all

relevant times, was doing business in the State of Maryland.
2.

Kevin Andrew Lenear ("Lenear") is an individual who resides at 292 Whistling

Pine Road, Severna Park, Maryland, 21446.
3.

Lenco, Inc. ("Lenco") is a Maryland corporation with a principal office located at

292 Whistling Pine Road, Severna Park, Maryland, 21446. Lenear is the President of Lenco.
4.

Express Services, Inc., dba Express Personnel Services, Express Personnel, and

Express Personnel of Towson ("Express Headquarters") is a Delaware corporation headquartered
in Oklahoma City, Oklahoma. On information and belief, during all relevant times, Express
Headquarters was continuously doing business in the State of Maryland, as well as other
jurisdictions. On information and belief, Lenear, Lenco, and Express Headquarters were
collectively operating as "Express Personnel" and "Express Personnel of Towson" in Maryland.
(Hereinafter, Lenear, Lenco, and Express Headquarters are sometimes collectively referred to as
"Express Personnel.")
JURISDICTION AND VENUE
5.

Venturi re-alleges and incorporates by reference paragraphs 1-4 above as if fully

set forth herein.
6.

This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1367

because the claims in this Third-Party Complaint are so related to the claims brought by ThirdParty Plaintiff Blockbuster Inc. ("Blockbuster") against Venturi that they form part of the same
case or controversy under Article III of the United States Constitution.

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7.

Venue is proper in this district under 28 U.S.C. § 1391(b) because, at all relevant

times, Lenear, Lenco and Express Personnel transacted business in this District and a substantial
part of the events or omissions giving rise to the claims asserted herein occurred in this District.
8.

This Court has personal jurisdiction over Lenear, Lenco and Express Personnel,

as they transacted business in this District, including the transactions giving rise to this action.
9.

Lenear, Lenco and Express Personnel are subject to service of process of the

Court pursuant to Federal Rule of Civil Procedure 4(K)(1)(A) and 4(K)(1)(B).
BACKGROUND
10.

Venturi re-alleges and incorporates by reference paragraphs 1 to 9 above as if

fully set forth herein.
11.

Venturi entered into a Services Agreement (the "Agreement"), effective June 1,

2004, to provide independent contractors or "Resources" for temporary staffing needs of
Blockbuster at Blockbuster's Gaithersburg, Maryland facility (the "Gaithersburg facility").
12.

Venturi entered into a contract with Express Personnel through which Venturi

subcontracted with Express Personnel to provide independent contractors to Blockbuster,
effective November 22, 2004.
13.

The contract between Blockbuster and Venturi continued through September 18,

14.

During the period of the Blockbuster/Venturi Agreement, Express Personnel hired

2005.

individuals and assigned them to the Gaithersburg facility.
15.

On or about September 26, 2007, Plaintiff Equal Employment Opportunity

Commission ("EEOC") filed a complaint against Blockbuster for alleged sexual, race and

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national origin, and retaliatory harassment and discrimination in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII").
16.

The EEOC complaint seeks relief on behalf of Hispanic and/or female employees

who may have been assigned by Express Personnel to work at the Gaithersburg facility
(hereinafter, the "Charging Parties and alleged class members"). The EEOC complaint alleges
that the purported harassment and discrimination of the Charging Parties and alleged class
members was committed by supervisors employed directly by Blockbuster.
17.

The Charging Parties and possibly other alleged class members were hired by

Express Personnel and assigned to the Gaithersburg facility by Express Personnel.
18.

During the period relevant to this lawsuit, neither the Charging Parties nor the

alleged class members were employed by Venturi.
19.

Express Personnel was a statutory employer of the Charging Parties and possibly

others among the alleged class members because, at all relevant times, it had at least fifteen (15)
employees engaged in an industry affecting commerce within the meaning of Title VII, 42
U.S.C. § 2000e(b), (g), and (h).
20.

Express Personnel was responsible for the wages, taxes, insurance, and other

obligations of its employees, including the Charging Parties and the alleged class members
placed at the Gaithersburg facility by Express Personnel. On information and belief, Express
Headquarters handled payroll for such employees, supplied anti-harassment and other
employment policies to them, and was kept updated by Lenear and Express Personnel's office
manager, Cynthia "Cinnie" Brown, on what was occurring with respect to issues involving such
employees.

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21.

Ms. Brown played a role in the administration and working arrangements of the

independent contractors assigned by Express Personnel to the Gaithersburg facility.
22.

As part of her duties, Ms. Brown received, processed, and investigated Express

Personnel employee concerns and complaints, including complaints of sexual, racial and national
origin, and retaliatory harassment and discrimination.
23.

Express Personnel was also responsible for the discipline and termination of its

employees who were assigned to the Gaithersburg facility.
24.

On or about November 14, 2008, Blockbuster filed its Third-Party Complaint

against Venturi seeking indemnification from Venturi based on the EEOC's claims.
Blockbuster's Third-Party Complaint alleges that since "Venturi subcontracted with Express
Personnel," Venturi is "jointly and severally liable for all damages suffered by Blockbuster as a
result of the actions and/or omissions of Express Personnel."
25.

Venturi has denied that Blockbuster is entitled to indemnification.
COUNT I -- INDEMNIFICATION

26.

Venturi re-alleges and incorporates by reference paragraphs 1 to 25 above as if

fully set forth herein.
27.

Although Venturi denies that Blockbuster is entitled to indemnification on any

basis, if Venturi is found liable to Blockbuster for indemnification based on the conduct of
Express Personnel, then Express Personnel is jointly and severally liable for all damages suffered
by Venturi.

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WHEREFORE, Third-Party Defendant/Fourth-Party Plaintiff Venturi Staffing Partners
prays that this Court enter judgment:
1.

Declaring that Lenear, Lenco and Express Headquarters (i) have a duty to
indemnify Venturi for all amounts that Venturi is legally required to pay or may
be required to pay in the future in any lawsuit brought in connection with Express
Personnel's employees assigned to the Gaithersburg facility; (ii) are obligated to
pay such amounts with interest thereon; and (iii) are obligated to reimburse
Venturi for all attorneys' fees and costs it has incurred and may incur in any future
lawsuits brought based on Express Personnel's acts or omissions at the
Gaithersburg facility.

2.

Awarding Venturi its attorneys' fees, costs, and expenses of this action with
interest thereon, to the extent such fees, costs, and expenses are attributable to
Blockbuster's claim for indemnification based on Express Personnel's acts or
omissions.

3.

Granting such other relief as the Court deems just and equitable.
Respectfully submitted,

/s/ Eric Hemmendinger
Eric Hemmendinger (Bar No. 02050)
Shawe & Rosenthal, LLP
20 S. Charles Street, 11th Floor
Baltimore, MD 21201
Phone: [phone]
Fax: [phone]

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Deborah R. Lydon (Ohio Bar #0013322)
Michael J. Mott (Ohio Bar #0083404)
Dinsmore & Shohl LLP
Suite 1900
255 East Fifth Street
Cincinnati, OH 45202
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Fourth-Party Defendant Venturi
Staffing Partners
CERTIFICATE OF SERVICE
I hereby certify that on January 16, 2009, I electronically filed the foregoing with the
Clerk of the Court using the CM/ECF system which will send notification of such filing to the
following:
Debra Michele Lawrence, Esq.
Ronald L. Phillips, Esq.
Equal Employment Opportunity Commission
City Crescent Building
10 South Howard Street
Third Floor
Baltimore, MD 21201
Jacqueline H. McNair, Esq.
Equal Employment Opportunity Commission
801 Market Street
Penthouse Suite 1300
Philadelphia, PA 19107
Grace E. Speights, Esq.
Lexer I. Quamie, Esq.
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004

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and will be served via electronic mail upon the following:
Elizabeth Scott Wood
MCAFEE & TAFT
10th Floor, Two Leadership Square
211 North Robinson
Oklahoma City, OK 73102-7103
Email: [e-mail]
and will be served via process server upon the following:
Kevin Andrew Lenear
292 Whistling Pine Road
Severna Park, Maryland, 21446
Lenco, Inc.
292 Whistling Pine Road
Severna Park, Maryland, 21446
/s/Eric Hemmendinger

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