EEOC

Filing 338

MEMORANDUM AND ORDER that the Plaintiff EEOC's objections to the September 28, 2012, Order of the Magistrate Judge Precluding Intervenors from Participating as Parties in Phase I 305 is overruled; and The Magistrate Judge's Order (Filing No. 296) is affirmed. Ordered by Chief Judge Laurie Smith Camp. (ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
ABDI MOHAMED, et al.,
Plaintiff/Intervenors,
FARHAN ABDI, et al.,
Plaintiff/Intervenors,
v.
JBS USA, LLC f/k/a JBS SWIFT & CO.,
a/k/a SWIFT BEEF COMPANY,
Defendant.

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CASE NO. 8:10CV318

MEMORANDUM
AND ORDER

This matter is before the Court on the Plaintiff EEOC’s Statement of Objections to
the September 28, 2012, Order of the Magistrate Judge Precluding Intervenors from
Participating as Parties in Phase I (Filing No. 305).
PROCEDURAL BACKGROUND
The Plaintiff Equal Employment Opportunity Commission (“EEOC”) alleged in its
Complaint that Defendant JBS USA, LLC (“JBS”), engaged in a pattern or practice of
discrimination against its Somali Muslim employees at its Grand Island, Nebraska, facility.
In its Amended Complaint, the EEOC identified 153 individuals for whom it seeks relief.
Two groups of allegedly aggrieved employees filed Complaints in intervention, but no class
has been certified pursuant to Fed. R. Civ. P. 23.
On April 15, 2011, the parties entered into a bifurcation agreement that Magistrate
Judge Gossett adopted and approved (Filing No. 76-1). The agreement divided the

discovery and trial into two phases: Phase I relates to pattern-or-practice claims to be
addressed using the Teamsters method of proof1; and Phase II relates to individual claims
and relief. JBS moved for an order precluding the Intervenors from participating as parties
in Phase I of the proceedings, and Judge Gossett granted that motion. The EEOC now
objects, arguing that the Intervenors may be prejudiced by legal or factual matters
determined in Phase I, and will not be able to seek fees and expenses for the considerable
time and effort they have invested in Phase I discovery if the EEOC prevails on any of the
pattern-and-practice claims in Phase I. JBS contends that the EEOC has no standing to
object on behalf of the Intervenors, and that Judge Gossett’s Order is correct.
The Intervenors filed a Notice of Consent (Filing No. 319), joining in the EEOC’s
reply brief (Filing No. 318), and this Court interprets the Intervenors’ Notice as a response
to JBS’s argument that the EEOC lacks standing to object on the Intervenors’ behalf, and
an attempt to join the EEOC’s Motion.
STANDARD OF REVIEW
In an appeal from a magistrate judge's order on a pretrial matter contemplated by
28 U.S.C. § 636(b)(1)(A), a district court may set aside any part of the magistrate judge's
order shown to be clearly erroneous or contrary to law. Id. The EEOC suggests that this
Court’s review of the Magistrate Judge’s Order should be de novo, under Fed. R. Civ. P.
72(b)(3), because the Order disposes of certain claims.

1

So called for the decision in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324
(1977), laying out a framework for analysis of claims when the government seeks to
remedy systematic practices of employment discrimination.
2

The Court will apply a de novo standard of review, acknowledging that the
Magistrate Judge’s Order may dispose of certain claims brought by the EEOC on behalf
of individuals under 42 U.S.C. § 2000e-5(f)(1), section 706 of the Civil Rights Act of 1964
(“Section 706"), though the individual claimants may seek back pay, compensatory
damages, punitive damages, and attorney fees on their own behalf in Phase II.
DISCUSSION
The Teamsters method of proof is employed when the EEOC institutes proceedings
pursuant to 42 U.S.C. § 2000e-6, section 707 of the Civil Rights Act of 1964 (“Section
707"), alleging defendants have engaged in a pattern or practice of civil rights violations.
It is recognized that there is a split of authority among courts regarding whether the EEOC
may employ the Teamsters method of proof, rather than the McDonnell Douglas2
framework, when the EEOC proceeds under Section 706.
The EEOC points this Court to a recent Sixth Circuit panel decision in which the
majority held that “the district court erred in concluding that the EEOC may not pursue a
claim under the Teamsters pattern-or-practice framework, pursuant to its authority vested
in § 706 of Title VII.” Serrano v. Cintas Corp. Nos. 10-2629, 11-2057, 2012 WL 5458182,
at *8 (6th Cir. Nov. 9, 2012). The EEOC also cites three earlier decisions suggesting that
the Teamsters method of proof may be available to the EEOC in Section 706 proceedings:
EEOC v. Int’l Profit Assocs., Inc., No. 07 C 4427, 2007 WL 844555 (N.D. Ill. Mar. 16,
2007); EEOC v. Scolari Warehouse Mkts., Inc., 488 F. Supp. 2d 1117 (D. Nev. 2007); and
EEOC v. Monarch Machine Tool Co., 737 F.2d 1444, 1449 (6th Cir. 1980).

2

So named for McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
3

Magistrate Judge Gossett adopted the reasoning of the U.S. District Court for the
District of Colorado, holding that the Teamsters method of proof is applicable only when
Section 707 claims are presented, and not when Section 706 claims are at issue. See
EEOC v. JBS USA, Inc., No. 10-cv-2103, 2011 WL 3471080, at *4 (D. Colo. Aug. 8, 2011)
(involving facts, claims, and parties virtually identical to those presented here, but relying
in part on the very recently vacated decision of Serrano v. Cintas Corp., 711 F. Supp. 2d
782 (E.D. Mich. 2010)). Magistrate Judge Gossett concluded that the better-reasoned
authority was that the McDonnell Douglas framework, and not the Teamsters method of
proof, applies to claims presented under Section 706.
JBS argues that whether or not the EEOC may pursue claims under the Teamsters
pattern-or-practice framework pursuant to its Section 706 authority, the Intervenors have
no right to participate in the Phase I proceedings, because they are pursuing individual
claims and are not representing any class.
This Court looks to Eighth Circuit precedent for guidance, and is bound to follow
such precedent. In Craik v. Minn. State Univ. Bd., 731 F.2d 465 (8th Cir. 1984), the Eighth
Circuit stated:
In McDonnell Douglas Corp. v. Green, . . . the Court prescribed a model for
the establishment of a prima facie case in “private, non-class” Title VII
actions[.]
....
On the other hand, for cases brought by private plaintiffs or by the
government on behalf of many employees, charging that an employer
engaged in discriminatory practices throughout most or all of its operations,
the Supreme Court in [Teamsters] prescribed a different order of proof.
731 F.2d at 469-70.

4

The Intervenors’ claims are private, non-class Title VII actions and must proceed
pursuant to the McDonnell Douglas burden-shifting framework. This Court reads the
second part of the above excerpt to mean that “for cases brought by private plaintiffs . . .
on behalf of many employees,” i.e. class actions, asserting pattern-or-practice claims, the
Teamsters framework will apply, as it will in “cases brought by . . . the government [EEOC
or Attorney General] on behalf of many employees” asserting pattern-or-practice claims.
The Intervenors’ have no statutory or contractual right to participate as parties in
Phase I of these proceedings.
Accordingly,
IT IS ORDERED:
1.

The Plaintiff EEOC’s Statement of Objections to the September 28, 2012,
Order of the Magistrate Judge Precluding Intervenors from Participating as
Parties in Phase I (Filing No. 305) is overruled; and

2.

The Magistrate Judge's Order (Filing No. 296) is affirmed.

DATED this 26th day of November, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

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