EEOC

Filing 706

MEMORANDUM AND ORDER - The Motion for Judgment on the Pleadings (Filing No. 620 ) filed by Defendant JBS USA, LLC, is granted; The Motion to Dismiss for Failure to State a Claim (Filing No. 641 ) filed by Defendant JBS USA, LLC, is granted; On or before August 14, 2015, Plaintiffs EEOC and Intervenors shall file an amended Phase II complaint consistent with this Memorandum and Order; The Motion for Leave to File Third Amended Complaint Out of Time (Filing No. 705 ) is denied as moot; The Motion to Dismiss Pro Se Intervenors for Failure to Comply with Court Order (Filing No. 657 ) filed by Defendant JBS USA, LLC, is granted; and All remaining claims asserted by Plaintiffs-Intervenors Ifra Abdullahi, Abdiwali Adan, Abdulka dir Adan, Abdisalann Ahmed, Farhiya Ahmed, Leyla Ahmed, Abdirisaak Ali, Barlin Ali, Kaltun Ali, Mohamed Ali, Adbirahman Ali Diriye, Mohamed Elmi, Abdisamad Farah, Ayan Geedi, Sainab Gurhan, Abdulahi Hashi, Amina Hassan, Asha Hussein, Rahma Hussein , Amina Hussien, Habsa Ibrahim, Mustafa Jama, Ahmed Jibril, Faysal Mahamud, Abdi Mohamed, Ahmed Mohamed, Dhoofo Mohamed, Hawo Mohamed, Muna Mohamed, Naima Mohamed, Ayan Mohamud, Sahra Mohamud, Nimo Musse, Said Nuuh, Adbirizak Sahal, Hawo Sharif, Abdullahi Sheekh, Abdifatah Warsame, Abdulazia Warsame, Abdiaziz Yusuf, Ahmed Hassan Yusuf, Jama Yusuf, Maryan Yusuf, Maymun Yusuf, Fadumo Abdi and Halimo Abdullahi are dismissed with prejudice.Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
8:10CV318
Plaintiff,
ABDI MOHAMED, et al.,

MEMORANDUM AND ORDER

Plaintiffs/Intervenors,
FARHAN ABDI, et al.,
Plaintiffs/Intervenors,
vs.
JBS USA, LLC,
Defendant.

This matter is before the Court on the following motions filed by Defendant JBS
USA, LLC: the Motion for Judgment on the Pleadings (Filing No. 620); the Motion to
Dismiss for Failure to State a Claim (Filing No. 641), and the Motion to Dismiss Pro Se
Intervenors for Failure to Comply with Court Order (Filing No. 657). For the reasons
stated below, the Motions will be granted. The remaining plaintiffs will be given an
opportunity to amend their complaints consistent with this Memorandum and Order.
PROCEDURAL BACKGROUND1
I.

Phase I and Bifurcation
On April 15, 2011, Plaintiffs filed with the Court a joint Bifurcation Agreement to

bifurcate discovery and trial into two phases, Phase I (involving the Equal Employment

1

A detailed factual history will be omitted from this Memorandum and Order as it is unnecessary
to the Court’s analysis. A detailed recitation of the facts can be found in several of the Court’s previous
Orders (Filing Nos. 469, 516, 611.)

Opportunity Commission’s (“EEOC”) pattern-or-practice claims) and Phase II (all
individual claims for relief). (See Filing Nos. 76 at 3, 76-1.) The parties agreed that in
Phase II the Court would address all individual claims for relief and “[a]ny claims for
which no pattern or practice liability was found in Phase I.” (Filing No. 76.1 at 5.) The
parties further agreed that “claims not tried in Phase I shall be tried under the traditional
McDonnell-Douglas burden-shifting paradigm [in Phase II], including all claims of
harassment/hostile work environment.” (Filing No. 76.1 at 5.) On May 26, 2011, the
Court adopted the Bifurcation Agreement to bifurcate discovery and trial into two
Phases. (Filing No. 81.) The Court later specified that the EEOC’s pattern-or-practice
claims addressed in Phase I arose under 42 U.S.C. § 2000e-6 (“Section 707”), not 42
U.S.C. § 2000e-5 (“Section 706”). (See Filing Nos. 296, 338, 469.) The Court also
specified that “[t]he Intervenors’ claims [were] private, non-class Title VII actions” and
the Intervenors had no statutory or contractual right to assert pattern-or-practice claims
or otherwise participate in Phase I. (Filing No. 338.)
Discovery proceeded, and trial was held on the EEOC’s Phase I pattern-orpractice claims from May 7, 2013, through May 17, 2013. At the close of the EEOC’s
evidence, JBS made an oral motion for judgment on partial findings pursuant to Fed. R.
Civ. P. 52(c). Based on agreement of the parties as reflected in the Final Pretrial Order,
the Court permitted the submission of deposition designations and objections after the
close of trial. (See Filing No. 479 at 12.) On July 1, 2013, the EEOC submitted
additional deposition designations in support of, and in addition to, testimony and
evidence presented at the Phase I trial. On October 11, 2013, the Court issued its
Findings of Fact and Conclusions of Law. (Filing No. 516 at 13, 26, 32-39.) The Court
2

concluded that although the EEOC established a prima facie case of denial of religious
accommodation, the requested accommodations imposed an undue burden on
Defendant JBS USA, LLC (“JBS”). On January 28, 2015, based on its conclusion in
Phase I, the Court dismissed all Phase II claims alleging that JBS failed to provide
reasonable religious accommodation.
II.

Remaining Plaintiffs and Claims
The Plaintiffs remaining at this stage include the EEOC and several individual

Plaintiff/Intervenors. For purposes of this Motion, the Plaintiff/Intervenors who remain in
this action are divided into three categories: The first category consists of
Plaintiff/Intervenors Abdi Mohamed, et al. (“Intervenors I”).

The second category

consists of Plaintiff/Intervenors Farhan Abdi, et al. (“Intervenors II”) (Intervenors I and
Intervenors II referred to collectively as “Intervenors”). The third category consists of
Plaintiff/Intervenors who are no longer represented by counsel (“Pro Se Intervenors”). 2
a.

EEOC’s Remaining Phase II Claims

The EEOC filed its Second Amended Complaint (“EEOC Complaint”) (Filing No.
99) on August 2, 2011, during the pendency of Phase I. Relevant to Phase II, the
EEOC Complaint alleges that JBS unlawfully terminated some of its Somali Muslim
employees because of their religion and national origin, and in retaliation for their
requests for religious accommodations, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et al. (Filing No. 99 ¶ 7.) The EEOC Complaint included a list
of aggrieved individuals for whom the EEOC sought relief on all of its claims, though
2

The Court notes that these categories are slightly different from the groupings identified in the
parties’ Joint Proposal for Groupings of Claimants and Case Progression for Phase II, adopted by the
Court on May 1, 2015. (See Filing No. 665 at 1.)

3

that list did not specify which claims applied to each individual. (Doc. 99 at 3-4, 14-18.)
In the parties’ Joint Rule 26(f) Conference Planning Report, the EEOC provided a list of
non-intervening aggrieved individuals (the “Rule 26(f) List”) to those who were
unlawfully terminated on the basis of religion and/or national origin, and those who were
discharged in retaliation for requesting religious accommodation. (Filing No. 622-1 at 1.)
The EEOC’s report also stated that it would seek relief in Phase II for all PlaintiffIntervenors with claims of unlawful termination based on religion and/or national origin,
and/or for all Plaintiff-Intervenors with claims of unlawful retaliatory discharge. (Id.)
b.

Remaining Claims of Intervenors I

Intervenors I filed their Second Amended Complaint in Intervention (“Intervenors I
Complaint”) on March 11, 2015. (Filing No. 639.) The Intervenors I Complaint includes
several claims phrased as pattern-or-practice claims. Intervenors I nevertheless assert
that their Phase II claims include: (1) disparate treatment in violation of Title VII and the
Nebraska Fair Employment Practices Act (“NFEPA”) Neb. Rev. Stat. §§ 48-1114
(Reissue 2010); (2) retaliation based on requests for religious accommodation; (3)
hostile work environment in violation of Title VII and the NFEPA; (4) disparate treatment
in violation of terms and conditions of employment based on religion, race, and/or
national origin; (5) retaliation based on opposition to JBS’s unlawful actions and/or
complaints of discrimination; and (6) hostile work environment in violation of 42 U.S.C. §
1981. (Rule 26(f) Report, Filing No. 592 at 6-11.) Intervenors I did not seek class
certification with respect to their Phase II claims.

4

c.

Remaining Claims of Intervenors II

Intervenors II filed their Amended Complaint in Intervention (“Intervenors II
Complaint”) on August 2, 2011. (Filing No. 100.) Intervenors II assert that their Phase
II claims include: (1) Violation of terms and conditions of employment based on religion,
race, national origin, and/or gender in violation of Title VII; (2) Retaliation based on
reasonable accommodation requests for religious practices in violation of Title VII; (3)
Hostile work environment based on religion, race, and national origin; (4) Unlawful
discipline, harassment, and/or discharge based on religion, race, and/or national origin
in violation of Title VII; (5) Hostile work environment based on race in violation of 42
U.S.C. § 1981; and (6) Unlawful discharge and/or discipline in retaliation for race-based
harassment complaints in violation of 42 U.S.C. § 1981. (Rule 26(f) Report, Filing No.
592 at 12-17.) Intervenors II did not seek class certification with respect to their Phase II
claims.
III.

Pro Se Intervenors
On January 21, 2015, counsel for Abdi Mohamed, et al., Plaintiff/Intervenors filed

a Renewed Motion to Withdraw, seeking to withdraw as attorneys of record for 54
Plaintiff/Intervenors. (Filing No. 607.) The Court granted the motion on February 3,
2015, and the law firm of Vincent Powers & Associates (the “firm”) was granted leave to
withdraw as counsel for the 54 Intervenors. (Filing No. 615.) The Court ordered the
firm to immediately mail copies of its Order, by certified mail, to each of the 54
Intervenors, along with a letter “notifying them that the Firm will no longer be
representing them in this action, and detailing the overall status of this case.” (Id. ¶ 2.)
The Court ordered that both documents be transcribed into Somali before they were
5

sent to any non-English speaking Intervenor. (Id.) The firm was directed to file a proof
of service with the Court, showing compliance with the Order and listing the names and
addresses of the persons to whom the documents were sent. (Id.)
An Amended Proof of Service Showing Compliance was filed with the Court on
February 25, 2015, listing several Intervenors who had been served with the Court’s
Order and the explanatory letter on February 19 and 24, 2015. (Filing No. 624.)
Pursuant to the Court’s Order, upon the filing of the Proof of Service (or as of February
25, 2015), the Intervenors were deemed to be proceeding pro se. (Filing No. 615 ¶ 3.)
In the absence of substitute counsel entering a written appearance, each Pro Se
Intervenor was directed to file a written notice with the Clerk of the Court of his/her
current address and telephone number within fourteen business days of being served
with the Order. (Id.) Subsequently, the firm was permitted to re-enter its appearance on
behalf of some of the Intervenors. (Filing Nos. 626 and 629.) The remaining PlaintiffIntervenors who did not file a notice with the Clerk of Court are presently deemed to be
proceeding pro se.
STANDARD OF REVIEW
“Judgment on the pleadings is appropriate where no material issue of fact
remains to be resolved and the movant is entitled to judgment as a matter of law.”
Minch Family LLLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960, 965 (8th Cir.
2010) (citing Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)). This is “the
same standard used to address a motion to dismiss for failure to state a claim under
Rule 12(b)(6).” Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). “To
survive a motion to dismiss, the factual allegations in a complaint, assumed true, must
6

suffice ‘to state a claim to relief that is plausible on its face.’” Northstar Indus., Inc. v.
Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[A]lthough a complaint need
not include detailed factual allegations, ‘a plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.’” C.N. v. Willmar Pub. Sch.,
Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Twombly, 550
U.S. at 555). “Instead, the complaint must set forth ‘enough facts to state a claim to
relief that is plausible on its face.’” Id. at 630 (citing Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks
omitted).

“Courts must accept . . . specific factual allegations as true but are not

required to accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com, Inc.,
643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451,
459 (8th Cir. 2010)) (internal quotation marks omitted). When ruling on a defendant's
motion to dismiss, a judge must rule “on the assumption that all the allegations in the
complaint are true,” and “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very
remote and unlikely.’” Twombly, 550 U.S. at 555, 556 (quoting Scheuer v. Rhodes, 416
7

U.S. 232, 236 (1974)). The complaint, however, must still “include sufficient factual
allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen
Corp., 561 F.3d 778, 783 (8th Cir. 2009).
I.

The Difference Between § 706 and § 707
An examination of the overarching law governing the Plaintiffs’ Phase II claims

provides a helpful framework from which to analyze the sufficiency of the Plaintiffs’
pleadings. As noted above, Phase I addressed the EEOC’s claims that JBS had a
pattern-or-practice of unlawfully failing to accommodate religious practices. The EEOC’s
pattern-or-practice claims arose under § 707, and not § 706. (See Filing Nos. 296, 338,
469.) The Court also previously held that “[t]he Intervenors’ claims are private, nonclass Title VII actions” and the Intervenors had no statutory or contractual right to assert
pattern-or-practice claims or otherwise participate in Phase I. (Filing No. 338.) The
parties’ bifurcation agreement, which pre-dated the Court’s Memorandum and Order of
November 26, 2012 (Filing No. 338), noted that “[a]ny claims for which no pattern-orpractice liability was found in Phase I and any claims not tried in Phase I shall be tried
under the traditional McDonnell-Douglas burden-shifting paradigm . . . ,” in Phase II.
(Filing No. 76-1 at 5.) A liberal reading of this language reflects an intent of the parties
to convert any unsuccessful pattern-or-practice claims in Phase I to individual claims
under § 706 in Phase II.3

3

Count I, Count IV, Count V, Count VI, Count VII, Count VIII, and Count IX of the Intervenors I
Complaint are each premised on a pattern-or-practice theory. (Filing No. 639 at 11-21.) JBS argues that
because these claims rest upon a pattern-or-practice theory, they must be dismissed. Intervenors argue
that the claims carry over as § 706 claims because of the language of the bifurcation agreement. JBS did
not respond to this argument in its reply and, viewing the bifurcation agreement in a light most favorable
to Intervenors, the Court will not dismiss these claims at this stage based solely on the pattern-or-practice

8

In sum, most of the claims in Phase II arise under § 706, and none is a patternor-practice claim under § 707. Nevertheless, because the complaints were filed and/or
contained language based on previous filings made during Phase I and prior to the
Court’s Order of November 26, 2012 (Filing No. 338), each of the Plaintiffs’ complaints
includes substantial allegations devoted to asserting pattern-or-practice claims. Proper
analysis of the sufficiency of the allegations related to Phase II requires a clear
understanding of § 706 and the differences between § 706 claims and § 707 pattern-orpractice claims. As discussed below, the current language of the operative complaints
makes it difficult to identify Plaintiffs’ Phase II claims, let alone assess whether Plaintiffs’
Phase II claims have been sufficiently pled.
As other courts have recognized, “[t]here is a significant distinction between §§
706 and 707 claims.” EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 932
(N.D. Iowa 2009) (internal citations and quotations omitted). “A § 706 claim involves the
rights of aggrieved individuals challenging an unlawful employment practice on an
individual or class-wide basis, whereas a § 707 claim involves a pattern-or-practice of
systemic discrimination challenging widespread discrimination throughout a company
on a group basis.” EEOC v. Scolari Warehouse Markets, Inc., 488 F. Supp. 2d 1117,
1143 (D. Nev. 2007) (emphasis in original). As discussed below, the differences
between § 706 and § 707 must be considered to determine whether the operable
complaints adequately plead § 706 claims.

language. Instead, as discussed below, the Intervenors will have an opportunity to amend their
complaints to allege claims under § 706.

9

II.

Sufficiency of EEOC’s Complaint
JBS argues that the EEOC Complaint must be dismissed because it fails to

identify the individuals bringing each type of claim, and fails to describe the factual
circumstances surrounding the discharge of any individual employees. The EEOC
argues that JBS’s Motion is improper because the EEOC is not required to plead details
about each individual claimant and the EEOC Complaint properly pleads allegations
against JBS. Further, the EEOC argues that extensive discovery in Phase I alerted JBS
to the EEOC’s claims. The Court will first assess whether the EEOC must identify each
individual for whom it seeks relief and assess whether the EEOC’s identification of such
individuals is sufficient in this case.

Second, the Court will determine whether the

EEOC Complaint, as currently worded, adequately puts JBS on notice of the EEOC’s §
706 claims during Phase II.
a.

EEOC Class Representation in § 706 Claims

JBS argues that it cannot respond to the EEOC Complaint in Phase II because
the EEOC does not identify the individuals for whom it seeks relief. At the outset, the
Court notes that, as a general matter, the EEOC is not required to identify each
individual.

The Eighth Circuit has specifically held that “[s]ection 706 of Title VII

authorizes the EEOC to bring claims involving the rights of aggrieved individuals
challenging an unlawful employment practice on an individual or class-wide basis.”
EEOC v. CRST Van Expedited, Inc., 774 F.3d 1169, 1178 (8th Cir. 2014) (quoting
EEOC v. Global Horizons, Inc., 860 F.Supp.2d 1172, 1191 (D. Haw. 2012)).
Accordingly, “[t]he EEOC may ‘seek class action-type relief without complying with . . .
Federal Rule of Civil Procedure 23.’” Id. (quoting Global Horizons, Inc., 860 F.Supp.2d
10

at 1191); see also EEOC v. Waffle House, Inc., 534 U.S. 279, 297 (2002); Gen. Tel. of
the Nw., Inc. v. EEOC, 446 U.S. 318, 331 (1980).
However, even though the EEOC need not identify each individual, it must
provide some indication of the scope of the class. See EEOC v. Fed. Reserve Bank of
St. Louis, 84 F.R.D. 337, 341 (W.D. Tenn. 1979) (“The proper standard under Rule 23,
and equally appropriate here, is to require the plaintiff to identify the general outlines of
the membership of the class at the outset of the litigation.”). “Thereafter, the EEOC has
a continuing duty to disclose, with as much particularity as possible, the names and
factual circumstances of those alleged discriminatees about whom it obtains
knowledge.” Id.; cf. 7A Charles Alan Wright et al., Fed. Prac. & Proc. § 1760 (3d ed.
2015).
The parties disagree as to the specificity that the EEOC must provide in its
Complaint. JBS argues that pattern-or-practice claims are “factually distinguishable”
from § 706 claims. (JBS Br., Filing No. 655 at 8.)

JBS draws the term “factually

distinguishable” from EEOC v. PMT Corp., 40 F. Supp. 3d 1122 (D. Minn. 2014). In
PMT the court rejected the contention that the Eighth Circuit’s decision in EEOC v.
CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012), required that the EEOC
identify names of class members in a pattern-or-practice case. PMT Corp., 40 F. Supp.
3d at 1129. The court reasoned that the decision in EEOC v. CRST Van Expedited, Inc.
did not involve pattern-or-practice claims, and was therefore “factually distinguishable”
from the pattern-or-practice claims in PMT. Although not precisely on point, the Eighth
Circuit in CRST affirmed the dismissal of an EEOC class-action where “the EEOC was
unable to provide [CRST] names of all class members . . . , or an indication of the size
11

of the class.” CRST, 679 F.3d at 676 (alterations in original) (citation and internal
quotation marks omitted). The Eighth Circuit held that not only did this failure prevent
the defendants from responding to the allegations in the complaint, but it also prevented
any meaningful opportunity to conciliate. Id. The Eighth Circuit therefore held that
dismissal was appropriate because the EEOC failed to satisfy its pre-suit obligations.4
JBS’s indirect reliance on the reasoning in EEOC v. CRST Van Expedited, Inc.,
supports the proposition that, at a minimum, an EEOC complaint must provide either the
names of all class member or some indication of the size and scope of the class. CRST,
679 F.3d at 676. A case cited by both parties, EEOC v. United Parcel Serv.,
Inc.(“UPS”), No. 09-CV-5291, 2013 WL 140604, at *4 (N.D. Ill. Jan. 11, 2013), provides
further direction in line with this reasoning from CRST and EEOC v. Fed. Reserve Bank
of St. Louis, supra. In UPS, the court held that a class complaint met the requirements
of Rule 8 where it pled “factual content that allow[ed] the court to draw the reasonable
inference that UPS violated provisions of the ADA as to the unidentified individuals.”
2013 WL 140604, at *4 (internal marks and citation omitted). The court explained that
the EEOC’s complaint identified:
. . . the statutes that UPS allegedly violated; the time frame in which the
alleged violations occurred; the names of two presently identified victims;
a general description of the class of aggrieved persons; the specific claims
alleged and their elements as to the charging party and the class of
aggrieved persons; the types of conduct to which the named claimants
and the unidentified class were subjected; and the remedies being sought.

4

The Court previously addressed the adequacy of the EEOC’s pre-suit conciliation efforts with
respect to the pattern-or-practice claims assessed in Phase I of trial. However, the Court did not address
the EEOC’s conciliation efforts with respect to the remaining claims in Phase II, and JBS does not raise
this issue in this Motion. The Court’s analysis here is limited to the adequacy of the pleadings in the
EEOC’s Complaint.

12

UPS, 2013 WL 140604, at *6.
In this case, the EEOC has identified individuals for whom it seeks relief in Phase
II inconsistently. The EEOC’s claims remaining to be resolved in Phase II are contained
in ¶¶ 7(e) and 7(f) of the EEOC Complaint. Those paragraphs read in their entirety:
(e) Defendant discharged Maymun Yusuf, Fartun Farah, Sahara
Mohamed, and a class of other aggrieved employees at its Grand Island,
Nebraska facility on or about September 18, 2008, because of their
religion, national origin, and in retaliation for their requests for religious
accommodations as set forth in subparagraph (a) above, and their
complaints about Defendant’s failure to accommodate their religion as set
forth in subparagraph (a) above. Defendant’s claim that these workers
engaged in an unauthorized work stoppage is a pretext for unlawful
discrimination.
(f) Defendant discharged Fowsiya Ibrahim and other aggrieved employees
because of their religion, Muslim, when it informed them they would no
longer be allowed to pray at work.
(EEOC Compl., Filing No. 99 ¶¶ 7(e), (f).)

The EEOC Complaint identifies four

individuals for whom the EEOC seeks relief, in addition to a class of “other aggrieved
employees.” (Filing No. 99 ¶¶ 7(e), (f).)

In the Rule 26(f) List, the EEOC identified

several new individuals for whom it would seek relief in Phase II: Sadiq Abdulle; Ayan
Aden; Sayid Ali; Abdigader Husi; Ayan Hirsi; Abdigani Hussein; Abdiaziz Jaffna; Shire
Jama; Jamal Jeidan; Bile Mire; Ahined Muse; Bashir Seed; Deka Shire; and Mawlid
Taalcilo. (Filing No. 622-1.)
The allegations in the EEOC Complaint and the aggrieved individuals in the Rule
26(f) List, taken together, render the EEOC’s Phase II claims unclear. Rather than
clarifying the class described in the EEOC Complaint, the Rule 26(f) List identified a
completely new set of individuals for whom it seeks relief.

This is particularly

confounding for the Court and other parties where the EEOC Complaint divided its
13

Phase II claims between sub-paragraphs 7(e) and sub-paragraph 7(f), and the Rule
26(f) List makes no such distinction.

Neither the Court nor JBS can reasonably

determine which Phase II claims are associated with the newly identified individuals.
Accordingly, the EEOC Complaint fails to provide adequate indication of the size and
scope of the class of individuals for whom it seeks relief.
b.

Potential Confusion in the EEOC Complaint

The EEOC’s dependence upon facts supporting pattern-or-practice claims also
renders the EEOC Complaint ambiguous and potentially confusing for purposes of
Phase II. Sub-paragraph 7(e) of the EEOC Complaint references sub-paragraph (a) as
the factual basis for some claims of discrimination and retaliation for request for
religious accommodation.

Sub-paragraph 7(a) is a list of actions which the EEOC

claimed

pattern-or-practice

constituted

a

of

denying

reasonable

religious

accommodation. (Filing No. 99 ¶ 7(a).) While the EEOC presumably intends for the
facts described to support the remaining individual claims, it is difficult to derive
individual instances of discrimination sufficient to support a § 706 claim from the
allegations supporting a pattern-or-practice claim. The EEOC Complaint contains few
facts to support the race and national origin claims referenced. Many of the allegations
in sub-paragraph 7(a) of the EEOC Complaint appear to address JBS’s alleged failure
to provide religious accommodation, and such issues have already been decided.
Further, other than an indirect reference to Ramadan 2008, the allegations in subparagraph 7(f) fail to provide a time frame in which the alleged § 706 violations occurred
and provide only a general indication of the types of conduct to which the named

14

claimants and the unidentified class were subjected. Accordingly, the EEOC Complaint
is unclear as to how the allegations fit within the Phase II claims.
Despite these deficiencies, the EEOC will be given leave to amend its Complaint
to clarify the factual allegations and aggrieved individuals for whom it seeks relief in
Phase II. While it is true that “late tendered amendments involv[ing] new theories of
recovery and impos[ing] additional discovery requirements” may justify denial of a
request to amend, that is not an issue in this matter. Popoalii v. Correctional Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008). JBS is generally aware of the EEOC’s
principal allegations and amendment will likely streamline discovery to allow JBS to
respond and to defend only those allegations related to Phase II claims.
III.

Sufficiency of the Complaint of Intervenors I and II.
While the EEOC may assert § 706 claims on behalf of a class without Rule 23

certification, the Intervenors enjoy no such right. Neither party has directed the Court to
an Eighth Circuit case directly addressing the pleading standard appropriate when
several plaintiffs assert the same causes of action without gaining class certification.
However, in Bautista v. Los Angeles Cnty., 216 F.3d 837 (9th Cir. 2000), the Ninth
Circuit addressed the sufficiency of a complaint alleging employment discrimination on
behalf of fifty-one named plaintiffs. The complaint alleged facts general to each of the
plaintiffs and asserted three causes of action specific to particular groups of plaintiffs.
Id. at 840. The first claim asserted age discrimination on behalf of twenty named
plaintiffs, the second claim asserted race and nationality discrimination on behalf of all
fifty-one plaintiffs, and the third claim alleged disability discrimination on behalf of three
named plaintiffs. Id. In a plurality opinion, the court noted that “[w]hile the complaint
15

contains stray allegations of discriminatory policies or practices imposed by [the
defendant], what it seeks is individual relief for each of the plaintiffs.” Id. The court then
stated:
To comply with Rule 8 each plaintiff must plead a short and plain
statement of the elements of his or her claim, identifying the transaction or
occurrence giving rise to the claim and the elements of the prima facie
case: that he or she is a member of a particular protected class, was
qualified and applied for the position he or she sought and was rejected on
a prohibited ground.
Id. The lead opinion concluded that despite the complaint’s shortcomings, the district
court erred in summarily dismissing the complaint with prejudice.
In concurring that dismissal of the complaint was error, Judge Stephen Reinhardt
addressed the lead opinion’s assertion that “because the plaintiffs' complaint seeks
‘individual relief for each of the plaintiffs’ and is not brought as a class action, it must
identify ‘the transaction or occurrence giving rise to the claim and the elements of the
prima facie case’ for each plaintiff.’” Id. at 842 (Reinhardt, J., concurring in part). Judge
Reinhardt reasoned that the complaint already did this, explaining that “[b]ecause each
plaintiff in this case claims to have lost his or her employment at the same time due to
the same event . . . their claims arise from the same transaction or occurrence, which
the complaint properly relates in a single set of allegations.” Id. at 843. Judge Reinhardt
concluded that under Fed. R. Civ. P. 8(a) and 10(b), “[i]ndividual plaintiffs who share
particular attributes or experiences relevant to their legal claims should be allowed—
indeed, encouraged—to consolidate those attributes or experiences in a single set of
allegations.” Id.

16

The Court finds Judge Reinhardt’s concurrence persuasive given the language
and spirit of federal pleading rules. Rule 10(b) requires: “A party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” Fed. R. Civ. R. 10(b) (emphasis added). Thus, if Invervenors’ claims
truly rest upon a single set of circumstances equally applicable to each of the
Intervenors, the form of pleading in the Intervenors’ Complaints is appropriate.
However, Rule 10 further states that “If doing so would promote clarity, each claim
founded on a separate transaction or occurrence--and each defense other than a
denial--must be stated in a separate count or defense. ” (emphasis added). Thus, in
some cases, a more specific pleading may be necessary to serve the intent of the
Federal Rules to “secure the just, speedy, and inexpensive determination of every
action and proceeding.” Fed. R. Civ. P. 1.
In this case, although the Intervenors are not required to allege facts common to
each individual separately, they do not enjoy the same ability to plead on behalf of a
class in the same way as the EEOC. That is, for the Intervenors to plead facts common
to all Intervenors as a single set of circumstances, the single set of circumstances must
truly be common to each individual Intervenor. Both Intervenors I and II acknowledge
that most of their claims lump individuals together, that is, according to the Intervenors,
each individual Plaintiff/Intervenor experienced the same discriminatory treatment under
the same set of operative facts. Intervenors claim that individualized pleading would
essentially require listing each individual Plaintiff/Intervenor in nearly every paragraph of
their complaints rather than using an abbreviated label such as “Plaintiff/Intervenors” to
represent each individual Intervenor.
17

Even so, the current wording of the Intervenors’ complaints is potentially
confusing and may militate against the just, speedy, and inexpensive determination in
Phase II of an already prolonged action because the complaints blur lines between
individual instances of discrimination and patterns or practices of discrimination. Courts
have recognized that “[n]otwithstanding [the differences between § 706 and § 707],
courts have blurred the line between class-wide claims brought pursuant to § 706 and
pattern-or-practice claims brought pursuant to § 707.” EEOC v. Scolari Warehouse
Markets, Inc., 488 F. Supp. 2d 1117, 1143 (D. Nev. 2007) (emphasis in original). It is
particularly important to avoid potential confusion between § 706 claims and § 707
pattern-or-practice claims in this case because the Intervenors do not seek class-wide
relief and they were precluded from recovery under a pattern-or-practice theory.
As noted above, § 706 authorizes plaintiffs to bring claims challenging an
unlawful employment practice. CRST Van Expedited, Inc., 774 F.3d at 1178. In other
contexts, the Eighth Circuit has explained “that the term ‘practice’ in this phrase does
not connote an ongoing violation that can endure or recur over a period of time.” Richter
v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012) (internal marks and
citation omitted). “Each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable unlawful employment practice.”
Id. (internal marks and citation omitted). In other words, § 706 “is addressed to
vindication of individual instances of employment discrimination.” EEOC v. Cont'l Oil
Co., 548 F.2d 884, 887 (10th Cir. 1977).
Although the parties’ bifurcation agreement ostensibly allows Intervenors’
pattern-or-practice claims to proceed as individual claims in Phase II, the wording of the
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Intervenors’ allegations are largely geared toward supporting allegations of ongoing
discrimination. For example, Count I of the Intervenors I Complaint states:
The pattern and/or practice of discriminatory treatment includes, but is not
limited to, harassment, disparate treatment, denial of religious
accommodation, retaliation against individuals who seek religious
accommodation and/or for participating in one more or protected activities
and disciplining and/or discharging the Plaintiffs/Intervenors due to their
race, color, national origin, gender and/or religion and/or in retaliation for
requesting religious accommodation and/or having requests for religious
accommodations made on their behalf and/or for participating in one or
more other protected activities.
(Filing No. 639 ¶ 32.) Similarly, Intervenors II allege:
Defendant regularly subjected Plaintiff-Intervenors to discipline for
attempting to pray at work. Such discipline ranged from reprimand to
discharge of their employment. Plaintiff-Intervenors, when insisting upon
their right to pray, were subjected to retaliation in the form of reprimand,
harassment and termination.
(Filing No. 100 ¶ 15 (emphasis added).) These allegations, read together with other
allegations in the respective complaints, point to JBS’s systemic employment practices
or ongoing discriminatory behavior rather than specific unlawful employment practices.
Thus, there is the potential for confusion regarding the individual claims in Phase II and
the “pattern-or-practice” claims precluded in Phase I.
Potential confusion also arises from the pleadings regarding the Intervenors’
exhaustion of administrative remedies. Intervenors I assert that 44 of the 68 named
individuals filed individual charges with the EEOC and NEOC, and 33 filed individual
charges of retaliation. (Filing No. 639 ¶ 10.) This suggests that as many as 24 of the
Intervenors I did not exhaust administrative remedies. Further, there is no indication in
the Intervenors I Complaint which of the Intervenors complied with the exhaustion
requirement prior to filing suit and which did not. Similarly, according to the Intervenors
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II Complaint, only 3 of 49 Intervenors II filed individual charges of discrimination with the
EEOC. (Filing No. 100 ¶ 9.) The Court will not address whether the Intervenors have
complied with the administrative prerequisites to an action at this time. Instead, the
Intervenors will be permitted to amend and clarify how the Intervenors have exhausted
their administrative remedies.
In sum, although Intervenors may plead facts genuinely common to all
Intervenors, they may not seek class-wide relief for systemic or ongoing unlawful
employment practices. Accordingly, Intervenors will be permitted to amend their
complaints to avoid language indicative of a pattern-or-practice claim and assert claims
under § 706. Intervenors, if necessary, shall specify whether facts and/or claims are
applicable to only a certain portion of the Intervenors.
IV.

Pro Se Intervenors
The Pro Se Intervenors will be dismissed from this case for failure to comply with

the Court’s order. Fed. R. Civ. P. 41(b) permits a defendant to move to dismiss any
claims asserted against it by a plaintiff who “fails to prosecute or to comply with these
rules or a court order . . . .” Similarly, NECivR 41.2 provides, “[a]t any time, a case not
being prosecuted with reasonable diligence may be dismissed for lack of prosecution.”
See also Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) (“An action may be dismissed
pursuant to Rule 41(b) if a plaintiff has failed to comply with any order of the court.”);
Henderson v. Renaissance Grand Hotel, 267 Fed. Appx. 496 (8th Cir 2008) (affirming
dismissal of plaintiff’s Title VII action for failure to prosecute after finding that plaintiff
failed to comply with court orders in a timely manner).

20

Dismissal for failure to comply with a court order is appropriate regardless of
whether the plaintiff is represented by counsel. See, e.g., Brantley v. BNSF Ry. Co., No.
4:12CV3215, 2014 WL 840641, *3 (D. Neb. March 4, 2014) (dismissing pro se litigant’s
case for failing to comply with court’s discovery orders). Although a “pro se litigant
should receive meaningful notice of what is expected of him,” he is required to, at the
very least, attempt in good faith to comply with the Court’s orders. Burgs v. Sissel, 745
F.2d 526, 528 (8th Cir. 1984) (dismissing pro se plaintiff’s case pursuant to Rule 41(b)
after he failed to comply with the court’s pretrial orders to clarify his claims).
Pursuant to the terms of the Court’s Order, the latest date for any of the 47 Pro
Se Intervenors to file a written notice with the Clerk of his/her current address and
telephone number was March 19, 2015 (14 business days from February 24, plus 3
days for mailing). The ECF docket as of July 24, 2015, reflects that none of the 47 Pro
Se Intervenors has filed the required written notice with the Clerk of the Court.
Accordingly, pursuant to Fed. R. Civ. P. 41(b) and NECivR 41.2, all remaining claims
asserted by the Pro Se Intervenors who have failed to comply with the Court’s Order are
dismissed with prejudice.
CONCLUSION
For the reasons stated, the complaints filed by the EEOC and Intervenors fail to
provide adequate notice of their Phase II claims, and/or are potentially confusing and
prevent meaningful response. The EEOC and the Intervenors will be permitted to
amend their complaints to cure these deficiencies. Any remaining claims of the Pro Se
Intervenors are dismissed with prejudice. Accordingly,

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IT IS ORDERED:
1.

The Motion for Judgment on the Pleadings (Filing No. 620) filed by
Defendant JBS USA, LLC, is granted;

2.

The Motion to Dismiss for Failure to State a Claim (Filing No. 641) filed by
Defendant JBS USA, LLC, is granted;

3.

On or before August 14, 2015, Plaintiffs EEOC and Intervenors shall file
an amended Phase II complaint consistent with this Memorandum and
Order;

4.

The Motion for Leave to File Third Amended Complaint Out of Time (Filing
No. 705) is denied as moot;

5.

The Motion to Dismiss Pro Se Intervenors for Failure to Comply with Court
Order (Filing No. 657) filed by Defendant JBS USA, LLC, is granted; and

6.

All remaining claims asserted by Plaintiffs-Intervenors Fadumo Abdi,
Halimo Abdullahi, Ifra Abdullahi, Abdiwali H. Adan, Abdulkadir A. Adan,
Abdisalaan Ahmed, Farhiya O. Ahmed, Leyla Ahmed, Abdirisaak Ali,
Barlin Ali, Kaltun Ali, Mohamud Ali, Abdirahman Diriye, Mohamed Elmi,
Abdisamad A. Farah, Ayan Geedi, Sainab Gurhan, Abdulahi Hashi, Amina
Hassan, Amina Hussien, Asha Hussein, Rahma Hussein, Fowsiya
Ibrahim, Habsa Ibrahim, Mustafa Jama, Ahmed Jibril, Abdi Mohamed,
Ahmed Mohamed, Dhoofo Mohamed, Hawo Mohamed, Muna Mohamed,
Naima Mohamed, Ayan Mohamud, Faysal Mohamud, Sahra Mohamud,
Nimo Musse, Said Nuuh, Abdirizak Sahal, Hawo Sharif, Abdullahi Sheekh,
Abdifatah Warsame, Abdulaziz Warsame, Abdiaziz Yusuf, Ahmed Hassan
22

Yusuf, Jama A. Yusuf, Maryan Yusuf, and Maymun Yusuf are dismissed
with prejudice.
Dated this 24th day of July, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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