EEOC

Filing 861

MEMORANDUM AND ORDER - 1. The Motion for Partial Judgment on the Amended Phase II Pleadings (Filing No. 751 ), is granted in part, as follows: a. The EEOC may not assert claims on behalf of the following individuals: (1) Fadumo Abdi; (2) Ifra Abdul lahi; (3) Abdiwali H. Adan; (4) Abdisalaan Ahmed; (5) Leyla Ahmed; (6) Kaltun Ali; (7) Rahma Hussein; (8) Fowsiya Ibrahim; (9) Mustafa Jama; (10) Ahmed Jibril; (11) Hawo Mohamed; (12) Muna Mohamed; (13) Sahra Mohamud; (14) Said Nuuh; (15) Abdifata h Warsame; (16) Abdiaziz Yusuf; (17) Ahmed Hassan Yusuf; (18) Maymun Yusuf; (19) Mohamud Einead; and (20) Ali Salah; b. The claims of Intervenors (1) Hodan Abdulle, (2) Shamso Abshir, (3) Astur Egal Nur, (4) Khadija Hassan, (5) Tufah Hassan (f/k/a Sahara Noor), (6) Khadro Osman, and (7) Deeq Said, arising under NFEPA, are dismissed, with prejudice; c. All claims asserted by First Intervenors (Abdi Mohamed, et al.) for discrimination on the basis of national origin under 42 U.S.C. § 1981 , as alleged in Count II of their Third Amended Complaint, are dismissed, with prejudice; c. All claims asserted by First Intervenors (Abdi Mohamed, et al.) for discrimination on the basis of national origin under 42 U.S.C. § 1981, as alleged in Count II of their Third Amended Complaint, are dismissed, with prejudice; d. All claims asserted by First Intervenors (Abdi Mohamed, et al.) for discrimination on the basis of race, as alleged in Count III of their Third Amended Complaint, ar e dismissed, with prejudice; e. Intervenor Sirad Adan's claim for retaliation under Title VII and NFEPA, is dismissed, with prejudice; f. All claims asserted by Second Intervenors (Farhan Abdi, et al.) in their Second Amended Complaint for d iscrimination and retaliation on the basis of race under Title VII and § 1981 are dismissed, with prejudice; g. All claims asserted by Second Intervenors (Farhan Abdi, et al.) in Counts IV and V of the Second Amended Complaint, are dismissed, with prejudice; h. The Motion for Judgment on the Pleadings is otherwise denied; 2. The Motion to Dismiss Parties (Filing No. 781 ), is granted; 3. Any claims asserted by Intervenors (1) Asli Abdille Abdullahi a/k/a Ambiya K. Roble, (2) Said A doow, (3) Noor Ahmed, (4) Ahmed Farah Ali, (5) Ayan Ali, (6) Rashid Yusuf Hundule, (7) Abdirisak Adan Abdulahi a/k/a Hussein Hussein, (8) Abdulkadir Jama, (9) Mohamed Jama, (10) Abdalle Hassan Mahamud, (11) Hanad Mohammed, (12) Yusuf Hassan Mohamu d a/k/a Abdalle Ali Mohamud, (13) Astur Mur a/k/a Astur Nur, (14) Warsame Nur, (15) Ali Abdi Hakim Said, and (16) Abdulqani Yusuf, are dismissed, with prejudice; 4. The Motion for Summary Judgment (Filing No. 791 ) is granted; 5. The EEOC's claims on behalf of the Claimants for religious or national-origin discrimination, or retaliation, as alleged in Counts I, II, and III of the EEOC's Third Amended Complaint (Filing No. 723 ), are dismissed, with prejudice; and 6. The claims of Abshir, Noor and Wais asserted in Counts I, II, III, and IV of the Third Amended Complaint of the First Intervenors (Abdi Mohamed, et al.) (Filing No. 721 ), are dismissed, with prejudice. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT
COMMISSION,

OPPORTUNITY
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 Motion for Partial Judgment on the
Amended Phase II Pleadings (Filing No. 751), the Motion to Dismiss Parties (Filing No.
781), and Motion for Summary Judgment (Filing No. 791), each filed by Defendant JBS
USA, LLC (“JBS”). For the reasons stated below, the Motion for Partial Judgment on
the Pleadings will be granted in part and denied in part; the Motion to Dismiss Parties
will be granted; and the Motion for Summary Judgment will be granted.
PROCEDURAL BACKGROUND
I.

Phase I and Bifurcation
On April 15, 2011, Plaintiffs filed a joint Bifurcation Agreement to divide discovery

and trial into two phases. Phase I involved pattern-or-practice claims presented by the
Equal Employment Opportunity Commission (“EEOC”). (See Filing Nos. 76 at 3, 76-1.)
Phase II was to address all individual claims for relief, and “[a]ny claims for which no
pattern or practice liability was found in Phase I and any claims not tried in Phase I [to]

be tried under the traditional McDonnell-Douglas burden-shifting paradigm [in Phase II],
including all claims of harassment/hostile work environment,” as well as “[i]ndividual
entitlement to back pay, compensatory, and punitive damages.” (Filing No. 76.1 at 5.)
On May 26, 2011, the Court adopted the Bifurcation Agreement. (Filing No. 81.)
Discovery proceeded, and trial was held on the EEOC’s pattern-or-practice
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 the 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 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.) The Court concluded that although the EEOC
established a prima facie case of denial of religious accommodation, the requested
accommodations imposed an undue burden on JBS.
II.

Structure of Phase II Claims
Plaintiffs remaining at the Phase II stage of proceedings include the EEOC and

several

individual

Plaintiff/Intervenors.

For

purposes

of

this

Motion,

the

Plaintiff/Intervenors who remain are divided into three categories, based on their
representation by different counsel, or no counsel. The first category consists of
Plaintiff/Intervenors Abdi Mohamed, et al. (“First Intervenors”). The second category
consists of Plaintiff/Intervenors Farhan Abdi, et al. (“Second Intervenors”). The third

2

category consists of Plaintiff/Intervenors no longer represented by counsel (“Pro Se
Intervenors”).
These categories are not to be confused with groupings used for purposes of
discovery in the parties’ Joint Proposal for Groupings of Claimants and Case
Progression for Phase II, adopted by the Court on May 1, 2015 (the “Groupings Order”).
(See Filing No. 665 at 1.) The Joint Proposal divided remaining claimants into three
groups for purposes of Phase II: Group A included individuals whose employment
ended prior to September 18, 2008. Group B included individuals whose employment
ended as part of the “mass termination” on September 18 and/or 19, 2008. Group C
included individuals whose employment ended after September 19, 2008, or who
remained employed by JBS. Discovery for Group B proceeded first. The Plaintiffs
collectively selected two claimants from Group B and JBS selected two claimants from
Group B, for Phase II discovery.

Discovery and trial for Groups A and C are to

commence after the Group B trial.
III.

Remaining Intervenors and Claims
First Intervenors
First Intervenors include Asha Abdi, Fatuma Abdullahi, Sirad Adan, Mohamud

Ali, Ahmed Dalmar, Fartun Farah, Mohamed Jama Farah, Mohamed Mohamed, Ahmed
Qurey, Istar Said, Shukri Wais, Fartun Warsame, and Burhan Yusuf.
Compl., Filing No. 721 at 5-6.)

(Third Am.

The Court notes that Intervenors Hodan Abdulle,

Shamso Abshir, Astur Egal, Khadija Hassan, Khadro Osman, and Deeq Said are all
listed in the caption of First Invervenors’ Third Amended Complaint and in the List of
Phase II Aggrieved Individuals and Phase II Claims for Such Individuals (Filing No.
3

619)1, but are not listed in the body of the Third Amended Complaint under “Intervenor I
members.” (Filing No. 721 at 1, 5-6.)
First Intervenors present four counts in their Third Amended Complaint: Count I
for wrongful termination based on “their religion, their prayer practices and/or requests
for prayer accommodation” in violation of Title VII and the Nebraska Fair Employment
Practices Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101 to 48-1125, 20–148 (Filing No.
721 at 7-8); Count II for wrongful termination based on national origin in violation of Title
VII and the NFEPA (Filing No. 721 at 8); Count III for wrongful termination based on
First Intervenors’ “race/color (black)” in violation of Title VII and the NFEPA (Filing No.
721 at 8-9); and Count IV for wrongful termination based on retaliatory conduct in
violation of Title VII and the NFEPA (Filing No. 721 at 9-10).
Second Intervenors
Second Intervenors present four counts in their Second Amended Complaint
(Filing No. 724), though not all Second Intervenors assert the same claims. Under
Count I, Intervenors Rahma Mohamed Abdi, Sahra Botan, Saynab Farah, Mohammed
Isak, Hawa Mohamud, Nimo Mohamed, Abdighani Muse, Maryan Muse (f/k/a Asha
Muse), and Ayan Osman allege hostile work environment and harassment on the basis
of their religion, race, and national origin in violation of Title VII.

Under Count II,

Intervenors Faydero Abdirahman, Abdirizaq Abdulle, Yasin Ahmed, Yusuf Dulane,

1

The Statement lists individuals who are seeking relief in Phase II based on the claims alleging:
(1) unlawful termination based on religion, Muslim and/or national origin, Somali, and/or race or color in
violation of Title VII of the Civil Rights Act, as amended and the Nebraska Fair Employment Practices Act;
(2) unlawful retaliatory discharge in violation of Title VII and the Nebraska Fair Employment Practices Act;
and (3) unlawful termination and unlawful retaliatory discharge based on color and/or race in violation of
42 U.S.C. §1981. (Filing No. 619 at 1-2.)

4

Amina Farah, Amina Gelle, Hawa Mohamud, Sugra Olad (f/k/a Hodan Sirad), and
Abdirahman Ahmed Yusuf allege discriminatory discipline, retaliation, and unlawful
discharge on the basis of their religion, race, and national origin in violation of Title VII.
Under Count IV,2 Intervenors Rahma Mohamed Abdi, Sahra Botan, Saynab Farah,
Hawa Mohamud, Nimo Mohamed, Abdighani Muse, Maryan Muse (f/k/a Asha Muse),
and Ayan Osman allege hostile work environment on the basis of their religion, race,
and national origin in violation of 42 U.S.C. § 1981. Finally, in Count IV, Intervenors
Bashir Abdi, Farhan Abdi, Faydero Abdirahman (f/k/a Saynab Abdirahman), Abdirizaq
Abdulle, Ahmed Adam, Mohamed Adan, Said Ali Ahmed, Sugule Ahmed, Yusuf Dulane,
Amina Farah, Hassan Gabow, Amina Gelle, Abdikhadar Hassan, Mohamed Isak,
Mohamed Isman, Musa Abdalla Mohamed, Sugra Olad (f/k/a Hodan Sirad), Mukhtar
Omar, Ali Shire, Yusuf M. Solad, and Abdirahman Ahmed Yusuf allege discriminatory
discipline, retaliation, and discharge on the basis of their religion, race, and national
origin in violation of 42 U.S.C. § 1981.
Pro Se Intervenors
Intervenors Asli Abdille Abdullahi (a/k/a Ambiya R. Roble), Said Adoow, Noor
Ahmed, Ahmed Farah Ali, Ayan Ali, Rashid Yusuf Hundule, Abdirisak Adan Abdulahi
(a/k/a Hussein Hussein), Abdulkadir Jama, Mohamed Jama, Abdalle Hassan Mahamud,
Hanad Mohammed, Yusuf Hassan Mohamud (a/k/a Abdalle Ali Mohamud), Astur Mur
(a/k/a Astur Nur), Warsame Nur, Ali Abdi Hakim Said, and Abdulqani Yusuf are no
longer represented by counsel. (Order dated July 27, 2015, Filing No. 710.) JBS has

2

The Second Amended Complaint (Filing No. 724) does not contain a Count III.

5

filed a Motion to Dismiss these Pro Se Intervenors due to “failure . . . to comply with the
Court’s July 28, 2015 and September 17, 2015 Orders.” (Filing No. 782 at 3.)
IV.

EEOC Claims
The EEOC filed its Third Amended Complaint (“EEOC Complaint”), alleging three

causes of action on behalf of several aggrieved individuals identified in Revised
Attachment A to the EEOC Complaint (the “Aggrieved Individuals”).3 (EEOC Compl.,
Filing No. 730 at ECF 16-19.) Count I alleges religious discrimination in violation of Title
VII on behalf of “aggrieved Somali Muslim employees” of JBS. (Filing No. 730 at 9.)
Count II alleges discrimination on the basis of the Aggrieved Individuals’ national origin,
in violation of Title VII. Count III alleges JBS illegally retaliated against the Aggrieved
Individuals based on their requests for religious accommodation, in violation of Title VII.
The EEOC seeks injunctive relief against JBS, as well as money damages to make
whole the Aggrieved Individuals due to loss in compensation and other pecuniary and
nonpecuniary losses.
V.

Group B Claimants
The parties selected the following four representative claimants for Group B

discovery purposes: Shamso Abshir, Tufah Hassan (formerly known as Sahara Noor
and referred to in this Memorandum and Order as Sahara Noor), Abdiaziz Jama and
Shukri Wais (referred to collectively as “Group B Claimants”).

The EEOC seeks

individual relief on behalf of all four Claimants. (See EEOC Compl. Doc. No. 730 at ECF
16-19.) First Intervenors seek individual relief for three of the Claimants: Abshir, Noor

3

The Aggrieved Individuals include the names of 57 individuals, some of whom are also either
Intervenors I or II. (Filing No. 730 at ECF 16-17.)

6

and Wais. None of the four Claimants is a member of Second Intervenors. (See Filing
No. 724.)
DISMISSAL FOR FAILURE TO COMPLY
The Court first addresses JBS’s argument that the Pro Se Intervenors should be
dismissed for failure to comply with the Court’s Order of July 28, 2015 (Filing No. 711)
and September 17, 2015 (Filing No. 748.
On July 27, 2015, counsel for the Farhan Abdi, et al., Plaintiff/Intervenors filed a
Motion to Withdraw, seeking to withdraw as attorneys for 16 Plaintiff/Intervenors. (Filing
No. 708.) The Court granted this motion on July 28, 2015, and the Council on AmericanIslamic Relations (“CAIR-Chicago”) was granted leave to withdraw as counsel for the 16
Plaintiff/Intervenors. (Filing No. 711.)
The Court ordered CAIR-Chicago immediately to mail copies of the Order, by
certified mail, to each of the Plaintiff/Intervenors, along with a letter “notifying them that
it will no longer be representing them in this action, and detailing the overall status of
this case.” (Id. ¶ 2.) On September 17, 2015, the Court entered a second Order (Filing
No. 748), granting in part JBS’s Motion to Compel Answers to Interrogatories and
Request for Sanctions (Filing No. 689). The Court ordered that the Plaintiff/Intervenors
“shall supply verified responses to Defendant’s interrogatories within forty-five (45) days
of this Order. Failure to do so may result in the imposition of sanctions, including, but
not limited to, dismissal of these Plaintiff/Intervenors’ claims.” (Filing No. 748 at 2.) The
Court further ordered that CAIR-Chicago “immediately mail copies of this Order, by
certified mail, to the above-referenced Plaintiff/Intervenors at their last known addresses
of record” and “file a certificate of service showing compliance with this Order.” (Id.) On
7

September 20, 2015, CAIR-Chicago filed its Proof of Service, listing the 16
Plaintiff/Intervenors who had been served, via U.S. Certified Mail, with both of the
Court’s Orders and the explanatory letter, on September 18, 2015. (Filing No. 750.)
The record shows that the Pro Se Intervenors failed to comply with either order.
Federal Rule of Civil Procedure 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.” Here, the failure of the 16 Pro Se Plaintiff/Intervenors to comply with the
Court’s July 28, 2015 and September 17, 2015 Orders is grounds for dismissal of their
remaining claims. See, e.g., 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).
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); Dahl v. Kanawha Inv. Holding
Co., 161 F.R.D. 673, 678 (N.D. Iowa 1995) (“Pro se litigants are not excused from
complying with court orders or substantive and procedural law”).

Where the Court

orders a pro se plaintiff to file an update regarding his “intention to continue prosecution
of his claims,” failure to file such an update “or failure to do so in a timely manner will be
8

deemed failure to prosecute . . . and may be deemed willful disobedience of a court
order, resulting in dismissal . . . pursuant to Fed. R. Civ. P. 41(b).” Hancock v.
Thalacker, 933 F. Supp. 1449, 1461 (N.D. Iowa 1996).

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). Because
the Pro Se Intervenors have not complied with the Court’s Orders, pursuant to Fed. R.
Civ. P. 41(b) and NECivR 41.2, all their remaining claims will be dismissed, with
prejudice.
MOTION FOR JUDGMENT ON THE PLEADINGS
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
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)).

9

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
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).
10

DISCUSSION
I.

EEOC’s Fourth Amended Complaint
The EEOC cannot seek individual relief on behalf of aggrieved individuals whose

claims have already been dismissed in this lawsuit. Accordingly, JBS argues that the
EEOC’s claims on behalf of twenty individuals must be dismissed.

Two of the

individuals, JBS argues, must be dismissed because the EEOC did not include their
names on the January 2015 List of Phase II Aggrieved Individuals. The EEOC does not
oppose dismissal of the two individuals—Mohamud Einead and Ali Salah—and the
EEOC’s claims on their behalf will be dismissed.
JBS also argues that the EEOC cannot seek recovery on behalf of eighteen other
individuals (the “dismissed individuals”)4 who had been dismissed by the Court’s Order
of July 24, 2015 (the “Dismissal Order”) (Filing No. 706) for failure to prosecute. JBS
argues that the EEOC cannot continue to seek individual relief for those whose claims
have been dismissed with prejudice, because the doctrines of res judicata and “law of
the case” prevent the EEOC from resurrecting dismissed claims.
“Under res judicata, a judgment on the merits in an earlier lawsuit bars a second
suit involving the same parties based on the same cause of action.” Prof'l Mgmt.
Assocs., Inc. v. KPMG LLP, 345 F.3d 1030, 1032 (8th Cir. 2003). “[R]es judicata can
apply to prevent reassertion of dismissed claims, even though there remain live claims
in the same litigation” Wintermute v. Kansas Bankers Sur. Co., 630 F.3d 1063, 1067

4

These individuals are (1) Fadumo Abdi; (2) Ifra Abdullahi; (3) Abdiwali H. Adan; (4) Abdisalaan
Ahmed; (5) Leyla Ahmed; (6) Kaltun Ali; (7) Rahma Hussein; (8) Fowsiya Ibrahim; (9) Mustafa Jama; (10)
Ahmed Jibril; (11) Hawo Mohamed; (12) Muna Mohamed; (13) Sahra Mohamud; (14) Said Nuuh; (15)
Abdifatah Warsame; (16) Abdiaziz Yusuf; (17) Ahmed Hassan Yusuf; and (18) Maymun Yusuf.

11

(8th Cir. 2011) (quoting Lair v. Oglesby, 14 F.3d 15, 17 n.2 (8th Cir.1993)). “The
requirements for application of res judicata are: 1) a final judgment on the merits, 2)
based on proper jurisdiction, 3) between the same parties, and 4) based on the same
claims or causes of action.” Wintermute, 630 F.3d at 1067 (citing Yankton Sioux Tribe
v. U.S. Dep't of Health & Human Servs., 533 F.3d 634, 639 (8th Cir. 2008)). With
respect to the EEOC’s claims, it is undisputed that the second element has been met,
because there have been no allegations of jurisdictional deficiencies. The Court now
must determine whether the first, third, and fourth elements of res judicata are met.
A.

Final Judgment on the Merits

The first element has been met because, by rule, the Dismissal Order operated
as an adjudication on the merits. The doctrine of res judicata is “applied only when the
party against whom the earlier decision is being asserted had a ‘full and fair opportunity’
to litigate the issue in question.” Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir. 1983)
(quoting Kremer v. Chemical Construction Corp., 456 U.S. 461, 481 n. 22 (1982)). The
EEOC appears to argue that res judicata cannot apply because the Dismissal Order
was not on the merits, nor was it a final judgment. Regarding the merits, the EEOC
concedes that under Federal Rule of Civil Procedure 41(b), the Court’s dismissal of the
individual parties for failure to prosecute operated as an adjudication on the merits.
(Filing No. 756 at 9.) Nevertheless, the EEOC argues in the same sentence that the
dismissed individuals’ claims were not fully litigated and were dismissed only because
they failed to respond to the Court’s Dismissal Order. This argument does not change
the plain language of Rule 41(b), that a dismissal for failure to prosecute “operates as

12

an adjudication on the merits.” Further, the dismissed individuals received a full and fair
opportunity to present their claims and neglected to do so.
The EEOC also asserts that the doctrine of res judicata requires a final judgment,
and JBS’s Motion fails because the Dismissal Order did not constitute a final judgment
under Rule 54(b). Rule 54(b) states that an order dismissing fewer than all the parties
is not a final judgment from which an appeal lies. However, for purposes of the res
judicata analysis, the Eighth Circuit has instructed that “[t]he availability of judicial
review is merely one factor to consider in determining whether issue preclusion applies.”
John Morrell & Co. v. Local Union 304A of United Food & Commercial Workers, AFLCIO, 913 F.2d 544, 563 (8th Cir. 1990). “[F]inality in the context of issue preclusion may
mean little more than that the litigation of a particular issue has reached such a stage
that a court sees no really good reason for permitting it to be litigated again.”

Id.

(quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir.
1961) (internal marks omitted)). The first element is not defeated merely because the
Dismissal Order was not a final judgment.

Because the Dismissal Order, by rule,

constituted an adjudication on the merits, the Court concludes that the first element of
res judicata is established.
B.

Privity Between the EEOC and the Dismissed Individuals

The third element is met because the EEOC is in privity with the dismissed
individuals. “The third element of res judicata requires that “both suits involve the same
parties (or those in privity with them).” Rutherford v. Kessel, 560 F.3d 874, 877 (8th Cir.
2009). “When a government entity sues for the same relief that plaintiff has already
pursued then the requisite closeness of interests for privity is present.” California v.
13

IntelliGender, LLC, 771 F.3d 1169, 1179 (9th Cir. 2014) (quotation marks and citation
omitted) (emphasis in original). The EEOC argues that it is not in privity with the
dismissed individuals, and is merely pursuing its own statutorily-authorized claims which
have not been adjudicated. To assess privity, the Court examines the EEOC’s statutory
authority in relation to the interests of the dismissed individuals.
Title VII provides that the EEOC may bring its own enforcement action and
grants the EEOC the right to obtain all statutory remedies available under the law,
including back pay. See 42 U.S.C. §§ 2000e-5(f)(1) and (g)(1); General Telephone Co.
of the N.W., Inc. v. EEOC, 446 U.S. 318, 324 (1980). Compensatory and punitive
damages are available to a “complaining party” under the law against a respondent who
engaged in unlawful intentional discrimination. 42 U.S.C. § 1981a(a)(1).

The term

“complaining party” is defined to include “the Equal Employment Opportunity
Commission, the Attorney General, [or] a person who may bring an action . . . [under
Title VII].” 42 U.S.C. §1981a(d)(1)(B). Thus, following “a straightforward reading of the
statute,” the Supreme Court has held that the EEOC is authorized “to sue in its own
name to enforce federal law by obtaining appropriate relief for those persons injured by
discriminatory practices forbidden by the Act.” Gen. Tel. Co. of the Nw. v. EEOC, 446
U.S. 318, 324–25 (1980). “As a complaining party, the EEOC may bring suit to enjoin
an employer from engaging in unlawful employment practices, and to pursue
reinstatement, backpay, and compensatory or punitive damages.” EEOC v. Waffle
House, Inc., 534 U.S. 279, 287 (2002).
The EEOC asserts that because the statutory scheme permits the EEOC to
enforce the law independently, it is not barred from pursuing its claims on behalf of the
14

dismissed individuals. The Supreme Court has “recognized the difference between the
EEOC's enforcement role and an individual employee's private cause of action.” Waffle
House, Inc., 534 U.S. at 287. The Court has further explained that “the EEOC is not
merely a proxy for the victims of discrimination . . . . Although [it] can secure specific
relief, such as hiring or reinstatement . . . , on behalf of discrimination victims, the
agency is guided by ‘the overriding public interest in equal employment opportunity . . .
asserted through direct Federal enforcement.’” General Tel. Co., 446 U.S. at 326
(quoting 118 Cong. Rec. 4941 (1972)). Based on the EEOC’s distinct interest, the
Supreme Court in Waffle House held that “[a]bsent textual support for a contrary view, it
is the public agency's province—not that of the court—to determine whether public
resources should be committed to the recovery of victim-specific relief. And if the
agency makes that determination, the statutory text unambiguously authorizes it to
proceed in a judicial forum.” Waffle House, Inc., 534 U.S. at 291–92.5
Despite the EEOC’s distinct interests, courts have held that the EEOC is not
permitted to “take a second bite of the apple” by asserting claims for make-whole relief
on behalf of those whose claims were unsuccessful. See EEOC v. Sidley Austin LLP,
437 F.3d 695, 696 (7th Cir. 2006) (“Even though (this is the doctrinal heart of Waffle
House) the EEOC is not in privity with the victims for whom it seeks relief, it does not
follow that they must be permitted to take two bites from the same apple.”).

5

For

Recognizing the diverging interests of the EEOC and individual victims, courts have permitted
the EEOC to assert claims on behalf of individuals even where no individuals complained of
discriminatory behavior, EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1537 (2d Cir. 1996), or where
the victim is judicially estopped from asserting the claim on his or her own. EEOC v. CRST Van
Expedited, Inc., No. 07-CV-95-LRR, 2013 WL 321021, at *4 (N.D. Iowa Jan. 28, 2013).

15

example, in EEOC v. Jefferson Dental Clinics, PA, 478 F.3d 690, 699 (5th Cir. 2007),
the Fifth Circuit noted the Supreme Court’s holding in Waffle House was limited in that
the Court stated that if an individual plaintiff “had accepted a monetary settlement, any
recovery by the EEOC would be limited accordingly.” Jefferson Dental Clinics, 478 F.3d
at 699 (quoting Waffle House, 534 U.S. at 296–97 (internal marks omitted). The Fifth
Circuit explained that in the context of injunctive relief, the EEOC’s interests are clearly
present. Id. at 698. “In the context of make-whole relief, however, the interests of the
EEOC stack up poorly against the principle of res judicata.” Id.; see also California v.
IntelliGender, LLC, 771 F.3d 1169, 1181 (9th Cir. 2014) (“Allowing the State's claims for
restitution to advance would undermine those longstanding principles of preclusion,
which we and other courts have recognized time and again under the basic rule that
when the government seeks individual relief on behalf of an already defeated litigant,
res judicata usually applies.”) (marks and citation omitted).
In this case, to the extent the EEOC seeks make-whole relief on behalf of the
dismissed individuals in the form of back-pay and monetary damages, the EEOC is
seeking relief that the dismissed individuals have already pursued.

Both parties

recognize that neither the Eighth Circuit nor the Supreme Court have ruled whether the
EEOC may seek make-whole relief on behalf of individual parties who have been
dismissed for failure to prosecute in the same lawsuit. However, the Supreme Court in
Waffle House expressly limited its holding by noting that “it goes without saying that the
courts can and should preclude double recovery by an individual.” Waffle House, 534
U.S. at 297 (internal marks omitted) (quoting General Tel., 446 U.S. at 333). In making
that statement, the Supreme Court cited approvingly to EEOC v. Goodyear Aerospace
16

Corp., 813 F.2d 1539 (9th Cir. 1987).

In Goodyear Aerospace, the Ninth Circuit

recognized that, regarding the preclusive effect of pre-suit settlement, the statutory
scheme supported the EEOC’s right to seek injunctive relief to protect employees as a
class, but mooted the EEOC’s claim for back pay for an employee because “the public
interest in a back pay award is minimal.” 813 F.2d at 1543. Similarly, although the
EEOC has independent statutory authority to address discriminatory behavior, if the
EEOC were permitted to pursue make-whole relief on behalf of the dismissed
individuals, the Court would effectively be permitting an attempt at double recovery.
The dismissed individuals had an opportunity to pursue their claims and obtain the very
relief the EEOC now seeks on their behalf; however, their claims were dismissed with
prejudice on the merits.

Accordingly, the EEOC is in privity with the dismissed

individuals, and the third element is met.
C.

Claims and Causes of Action

“The fourth requirement of res judicata is that ‘both suits are based upon the
same claims or causes of action.’”

Yankton Sioux Tribe v. U.S. Dep't of Health &

Human Servs., 533 F.3d 634, 641 (8th Cir. 2008) (quoting Costner v. URS Consultants,
Inc., 153 F.3d 667, 673 (8th Cir. 1998)). The Eighth Circuit has “determined that ‘a
claim is barred by res judicata if it arises out of the same nucleus of operative facts as
the prior claim.’” Yankton Sioux Tribe, 533 F.3d at 641 (quoting Lane v. Peterson, 899
F.2d 737, 742 (8th Cir. 1990)). The EEOC does not assert that its claims are factually
distinct from those of the dismissed individuals. Rather, as discussed above, the EEOC
argues that the very nature of the EEOC’s legal interests renders its claims separate
and distinct from the claims of the dismissed individuals. Thus, the EEOC’s position
17

with respect to the fourth element appears to be intertwined with its argument with
respect to the third element—that the EEOC is not in privity with the dismissed
individuals. For the reasons discussed above, the Court concludes that the EEOC is in
privity with the dismissed individuals. Accordingly, because their claims arise out of the
same nucleus of operative facts, the fourth element is met.
Because all elements of res judicata are met, the EEOC may not assert claims
on behalf of the dismissed individuals.
II.

First Intervenors’ Third Amended Complaint
JBS asserts that several parties and claims in the First Intervenors’ Third

Amended Complaint must be dismissed. First, JBS claims that seven members of First
Intervenors failed to file Title VII administrative charges, and must be dismissed.
Second, JBS alleges that these seven members’ NFEPA claims are barred by the
applicable statute of limitations. Third, JBS also alleges that all the First Intervenors’
race/color discrimination claims asserted in Count III of the Third Amended Complaint
must be dismissed because the First Intervenors failed to allege any facts supporting
those claims. Fourth, JBS asserts that the Title VII race/color discrimination claims
asserted by thirteen members of First Intervenors must be dismissed because the
thirteen individuals failed to allege race/color discrimination in their charges, and their
NFEPA race/color discrimination claims are also time-barred. Fifth, JBS asserts that two
of the First Intervenors who filed charges cannot maintain Title VII retaliation claims
because they did not allege retaliation in their charges, and their NFEPA retaliation
claims are also time-barred.

Finally, JBS asserts that all the Section 1981 claims

asserted in the Third Amended Complaint must be dismissed.
18

A.

Title VII Administrative Charges

There is no dispute that seven members of the First Intervenors group failed to
file administrative charges: (1) Hodan Abdulle, (2) Shamso Abshir, (3) Astur Egal Nur,
(4) Khadija Hassan, (5) Tufah Hassan (f/k/a Sahara Noor), (6) Khadro Osman, and (7)
Deeq Said. For the reasons discussed below, their claims will not be dismissed for that
reason.
“Title VII requires that before a plaintiff can bring suit in court to allege unlawful
discrimination, she must file a timely charge with the EEOC or a state or local agency
with authority to seek relief.” Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850
(8th Cir. 2012) (citing 42 U.S.C. § 2000e–5(e)(1)).

The charge requirement is “an

elaborate administrative procedure, implemented through the EEOC, that is designed
‘to assist in the investigation of claims of . . . discrimination in the workplace and to work
towards the resolution of these claims through conciliation rather than litigation.’” Id.
(quoting Patterson v. McLean Credit Union, 491 U.S. 164, 180–81 (1989), superseded
by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102–166, 105 Stat.
1071).
First Intervenors argue that the seven individuals who failed to file charges may
pursue their claims based on the so-called “single-filing” or “piggyback” rule. Under the
single-filing rule, once a single plaintiff has filed an administrative charge, other plaintiffs
may join the suit without filing separate charges by “piggybacking” on the original
charge. See Kloos v. Carter–Day Co., 799 F.2d 397, 400 (8th Cir. 1986) (applying
piggybacking to an ADEA claim). In the Eighth Circuit, the single-filing rule has applied
only when the original filing places the administrative agency and the employer on
19

notice that class claims may follow. Kloos, 799 F.2d at 400. Thus, to avoid undermining
the twin goals of notice and conciliation, the charge must “fairly anticipate class claims.”
Id. For the single-filing rule to apply in a class action, the “administrative claim must give
notice that the discrimination is ‘class-wide,’ i.e., that it alleges discrimination against a
class of which the subsequent plaintiff is a member.” Tolliver v. Xerox Corp., 918 F.2d
1052, 1058 (2d Cir. 1990) (describing the approach used in Kloos compared to the
approach used by other circuits).
As this Court has noted before, the “Intervenors’ claims are private, non-class
Title VII actions.” (Filing No. 338 at 5.) JBS’s principal argument is that non-filing
Intervenors’ claims must be dismissed because the single-filing rule only applies in
class action lawsuits, particularly in light of language from the Supreme Court’s decision
in in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan,
the Supreme Court stated “discrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges. Each discrete
discriminatory act [i.e., each act that is not part of a continuing violation] starts a new
clock for filing charges alleging that act.” Id. at 113. Several courts have recognized
the tension between the single-filing rule and the Supreme Court’s holding in Morgan.
See, e.g., Horton v. Jackson Cnty. Bd. of Cnty. Comm'rs, 343 F.3d 897, 900 (7th Cir.
2003); Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1198–99 (10th Cir. 2004); Simpson
v. Boeing Co., 27 F. Supp. 3d 989, 993 (E.D. Mo. 2014). The Seventh Circuit in Horton
explained that the conflict exists because the “single-filing rule dispenses not only with
the need to file a separate charge for each violation of an employee's rights, but also
and necessarily with the need to file a timely charge.” 343 F.3d at 900 (emphasis in
20

original). Thus, the Supreme Court’s “reference to the ‘clock’ is also a reminder that the
filing of a timely charge with the EEOC is . . . like a statute of limitations; and if there are
two victims of the same or similar wrongful activity and one sues, his suit does not toll
the statute of limitations for the other to sue.” Id. (citation omitted). For these reasons,
the Seventh Circuit speculated that “[a]fter Morgan, it is possible that the Supreme
Court will limit the doctrine to class action cases.” Id. at 901.
Though other circuits have varied in their application of the single-filing rule after
Morgan, only one circuit categorically limits the piggyback rule to class-actions.6 The
Tenth Circuit has stated that the single-filing rule should still apply because “[t]he act of
filing a charge is deemed ‘useless’ in situations in which the employer is already on
notice that plaintiffs may file discrimination claims, thus negating the need for additional
filings.” Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004). The Tenth
Circuit in Foster recognized that:
Courts employ several different tests to determine when the single filing
rule should apply. The broadest test requires only that the claims of the
administrative claimant and the subsequent plaintiff arise out of the same
circumstances and occur within the same general time frame . . . . A
somewhat narrower test requires that the administrative claim give notice
that the discrimination is “class-wide,” i.e., that it alleges discrimination
against a class of which the subsequent plaintiff is a member. A still

6

The Third Circuit has determined that, categorically, the single-filing rule does not apply to nonclass actions. See Communications Workers of Am. v. New Jersey Dep't of Personnel, 282 F.3d 213,
217 (3d Cir. 2002) (holding that filing a charge with allegations broad enough to support a subsequent
class action lawsuit does not alleviate the burden of filing the class action itself). The Third Circuit
reasoned that permitting individual suits to go forward without an EEOC charge would “eviscerate the
distinction between an action filed by an entity based on associational standing . . . and class actions, and
the attendant requirements of class certifications and the associated procedural due notice and fairness
safeguards as provided by Fed. R. Civ. P. Rule 23.” Id. at 218. Accordingly, in the Third Circuit, “if
plaintiffs choose to bring suit individually, they must first satisfy the prerequisite of filing a timely EEOC
charge.” Id. (internal marks and citation omitted).

21

narrower test requires that the administrative charge not only allege
discrimination against a class but also allege that the claimant purports to
represent the class or others similarly situated.
Id. at 1197-98 (quoting Howlett v. Holiday Inns, Inc., 49 F.3d 189, 195 (6th Cir. 1995)).
Recognizing the tension between the holding in Morgan and the single-filing rule, the
Tenth Circuit concluded that Morgan, at most, supported a more limited test when
applying the single-filing rule. Id. at 1198.
The Eighth Circuit recognized pre-Morgan that “[i]t is settled that a suit by a
named member of a class in a class action may seek relief for the entire class without
the necessity of other class members pursuing their administrative remedy with the
EEOC.” Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 882 (8th Cir.
1977). In Allen, the Eighth Circuit further held that “although no class action was filed,
13 additional plaintiffs alleged facts demonstrating they were similarly situated and had
received the same discriminatory treatment.” Id. The court reasoned “[i]t would be
wasteful, if not vain, for numerous employees, all with the same grievance, to have to
process many identical complaints with the EEOC. If it is impossible to reach a
settlement with one discriminatee, what reason would there be to assume the next one
would be successful.” Id. at 883 n.9. Thus, “[u]nder such circumstances, particularly
where the discrimination is continuing it would be nonsensical to require each of the
plaintiffs to individually file administrative charges with the EEOC.” Id. at 882-83.
The Eighth Circuit expounded upon that reasoning in Kloos, stating that
“[a]llowing class actions without administrative charges that fairly anticipate class claims
would undermine the notice and conciliation purposes of the filing requirement.” Kloos,
799 F.2d at 400. Thus, in Kloos, the Eighth Circuit clarified that for the single-filing rule
22

to apply, there must be an “allegation of class-wide discrimination or claim of class
representation . . . to inform and give notice to the employer that the consequences of
an individual plaintiff's charge may transcend an insolated individual claim.” Id. The
Eighth Circuit declined to apply the single-filing rule in Kloos because the only charges
by persons connected with the case failed to allege class-wide discrimination or claim to
represent a class, and the small number of charges failed to provide notice of potential
class claims. Id. at 401.
The Eighth Circuit has not expressly stated whether the single-filing rule applies
to non-class actions after Morgan.7 However, it appears that the single-filing rule still
has application in narrow circumstances.8 In Richter, the court specifically noted that
while the “reasonably related” exception was considerably more narrow post-Morgan,

7

The Eighth Circuit has addressed the effect of Morgan with respect to the exhaustion of
administrative remedies in the Title VII context. In Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851
(8th Cir. 2012), the court addressed whether a plaintiff is required to file an administrative charge with
respect to claims that are “like or reasonably related to” an alleged unlawful unemployment practice that
the plaintiff properly exhausted. Previous to Richter, the Eighth Circuit had held that “allegations in a
judicial complaint are ‘cognizable’ if the claims filed in court are ‘like or reasonably related to’ charges that
were timely filed with the EEOC.” Id. at 852 (quoting Wentz v. Maryland Casualty Co., 869 F.2d 1153,
1154 (8th Cir.1989)). After Morgan, however, the Eighth Circuit disavowed the holding in Wentz. Id. The
court explained that “[t]he overriding message of Morgan was to follow statutory text. ‘Strict adherence to
the procedural requirements specified by the legislature is the best guarantee of evenhanded
administration of the law.’” Id. at 852 (quoting Morgan, 536 U.S. at 108). Therefore, following Morgan,
“our most salient source for guidance is the statutory text.” Id. (quoting Morgan, 536 U.S. at 109).
8

District courts in this circuit have applied Allen to permit claims to go forward under the singlefiling rule in non-class-actions even after Morgan. See EEOC v. Von Maur, Inc., 237 F.R.D. 195, 199
(S.D. Iowa 2006) (“Under that rule a Title VII (or ADEA) plaintiff who has not filed an EEOC charge may
join or ‘piggyback’ as a party-plaintiff with another who has filed a charge so long as the EEOC charge
was timely and not defective and the charging and non-charging plaintiffs were similarly situated and
received the same alleged discriminatory treatment.”). See also Mustafa v. United Auto Grp., No.
4:03CV00304, 2005 WL 1923107, at *3 (E.D. Ark. July 19, 2005) (“In accordance with Allen, the Court
finds that the remaining Plaintiffs in this case may rely on the EEOC charge filed by Plaintiff Mustafa to
support their individual Title VII claims.”).

23

the court was reluctant to abandon it completely. Richter, 686 F.3d at 860; see also
Wedow v. City of Kansas City, Missouri, 442 F.3d 661, 674 (8th Cir. 2006) (“[But] [w]hile
our court has narrowed its view of what subsequent acts are sufficiently related to be
within the scope of the properly filed administrative charges, we have not wholly
abandoned the theory that reasonably related subsequent acts may be considered
exhausted.”).

For the same reasons, the Eighth Circuit is unlikely to abandon the

single-filing rule categorically. Following the reasoning in Kloos and Allen, the singlefiling rule may apply if the unexhausted claim arises from the same unlawful conduct as
the claims contained in the timely charge, and the charge must give “notice to the
employer that the consequences of an individual plaintiff's charge may transcend an
insolated individual claim.” Kloos, 799 F.2d at 400.
In this case, the single-filing rule applies to the seven non-filing individuals based
on the allegations in the charges. JBS received several charges alleging similar
discriminatory behavior on the same date. (See Filing No. 753-2 at ECF 2-15.)
Construed in a light most favorable to First Intervenors, the text of the charges provided
some indication that the alleged discriminatory behavior affected more than the
charging individual. For example, the charge of Intervenor Fatama Abdullahi alleged
that she was discriminated against when she and ten other women were told to stop
praying during their break time.

(See Filing No. 753-2 at ECF 3.) The charge of

Intervenor Sirad Adan alleged that JBS required a doctor’s note from Somali women to
use the restroom, while other employees were permitted to go to the bathroom without a
note. (See Filing No. 753-2 at ECF 4.) Following the language in Allen, the seven noncharging individuals’ claims relate to the same alleged discriminatory behavior as the
24

charging individuals. Further, the large number of charges in conjunction with a mass
termination indicated to JBS that there may be a class of individuals who experienced
similar discrimination. See Horton, 343 F.3d at 899 (“If for example the employer has
fired every worker over the age of 40 and one of them has filed a timely charge, he can
guess that others will, and there is no need to flood the EEOC with identical charges.”).
Accordingly, the allegations arising under Title VII of the seven non-charging First
Intervenors will not be dismissed for their failure to file charges.
B.

NFEPA Claims for the Seven Nonfiling Intervenors

JBS argues that, due to their failure to file charges, the NFEPA claims of the
seven non-filing First Intervenors must be dismissed. “[U]nder under Nebraska law, an
NFEPA claim need not be administratively exhausted.” Freeman v. GNS Corp., No.
4:14-CV-3203, 2015 WL 4622609, at *3 n.1 (D. Neb. July 30, 2015) (citing Neb. Rev.
Stat. § 20–148; Goolsby v. Anderson, 549 N.W.2d 153, 157 (Neb. 1996)). However, if
an NFEPA charge is not filed, “the plaintiff must still observe the 300-day limitation
period for NFEPA claims established by Neb. Rev. Stat. § 48-1118(2).”

Id. (citing

Adkins v. Burlington N. Santa Fe R.R. Co., 615 N.W.2d 469, 473 (Neb. 2000)). In other
words, NFEPA claims are time-barred if not filed within 300 days of the alleged unlawful
activity. Adkins, 615 N.W.2d at 473-74; see also Rose v. Midwest Express Airlines,
Inc., No. 801CV473, 2002 WL 31095361, at *5 (D. Neb. Sept. 19, 2002) (“The NFEPA
specifically requires employment discrimination claims to be brought ‘within three
hundred days after the occurrence of the alleged unlawful employment practice.’”)
(quoting Neb. Rev. Stat. 48–1118(2)).

25

In this case, the seven First Intervenors who did not file charges have asserted
NFEPA claims based on discharges that occurred in September 2008. (See Third Am.
Compl. ¶¶ 35,46.) They did not file a charge or complaint regarding these NFEPA
claims until November 8, 2010, the date they filed their original Complaint in Intervention
(See Filing No. 69.) Because the seven non-filing Intervenors did not file their NFEPA
claims within 300 days of their discharges, all of their NFEPA claims are time-barred
and will be dismissed.
C.

Section 1981 Claims based on National Origin

JBS argues that First Intervenors’ national origin claims under § 1981 must be
dismissed. As noted above, First Intervenors assert discrimination claims under § 1981
based on national origin (Somali) (Count II of the Third Amended Complaint). Though
Title VII prohibits discrimination on the basis of race, § 1981 does not provide a basis
for claims based on national origin. Torgerson v. City of Rochester, 643 F.3d 1031,
1052-53 (8th Cir. 2011) (en banc). Thus, First Intervenors’ claims for discrimination on
the basis of national origin under § 1981, as alleged in Count II, must be dismissed as a
matter of law.9
D.

Race Discrimination Claims

JBS argues that First Intervenors’ race discrimination claims under Title VII and §
1981 must be dismissed.

The allegations in the First Intervenors’ Third Amended

Complaint concerning race are that First Intervenors “are black in race/color” (Filing No.
721 ¶ 2); that fourteen of the Intervenors filed charges of discrimination alleging
race/color discrimination (Filing No. 721 ¶ 5); and that “a motivating factor in the
9

Count II also alleges national origin discrimination under Title VII and NFEPA.

26

Defendant’s decision to discharge the members of the First Intervenors group was their
race/color (black)” (Filing No. 721 ¶ 41). JBS asserts that these allegations are too
minimal to meet the plausibility standard to support a claim for racial discrimination.

A

cause of action for race discrimination requires the plaintiff to show “‘(1) that she is a
member of a protected class; (2) that she was meeting her employer's legitimate job
expectations; (3) that she suffered an adverse employment action; and (4) that similarly
situated employees outside the protected class were treated differently’ or the
circumstances give rise to an inference of discrimination.” Smith v. URS Corp., 803
F.3d 964, 969 (8th Cir. 2015) (quoting Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864
(8th Cir. 2008)); see also Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir.
2010). The minimal references to the First Intervenors’ race amount to, at most,
threadbare recitals of the elements of their race discrimination claims that fail to meet
the plausibility standards in Iqbal and Twombly. None of these allegations explains or
suggests how JBS’s actions were motivated by or resulted in race discrimination. Thus,
absent other facts that permit such an inference, First Intervenors’ race discrimination
claims under Title VII and § 1981 must be dismissed for failure to state a claim.
First Intervenors argue that their use of the term “Somali Muslim” in paragraphs
19 through 22 of the Third Amended Complaint permits an inference of racial
discrimination. First Intervenors assert that the term “Somali Muslim” can be construed
to refer to the First Intervenors’ race or ethnic characteristics in addition to their national
origin.

This is so, according to First Intervenors, because paragraphs 19 through 22

refer to Hispanic employees; therefore, JBS should “know the color of their employees’
skin” and reasonably infer that these paragraphs are highlighting the difference in treatment
27

between the First Intervenors and the Hispanic employees. (See Filing No. 770 at 7-8.)

Thus, First Intervenors argue, references in paragraphs 19-22 to “Somali Muslims”
serve the dual purpose of (a) clarifying that their allegations are based, at least in part,
on their ethnicity rather than just their national origin, and (b) adding factual support to
their race discrimination claims. The Court concludes that these allegations do not
serve either purpose because they fail to support an inference of discrimination on the
basis of race or ethnicity.
First Intervenors allege their § 1981 claims are based on their status as “an
ethnically and physiognomically distinctive subgrouping of homo sapiens.” St. Francis
College et.al. v. Al-Kahazraji Aka Allan, 481 U.S. 604, 613 (1987). The issue before the
Supreme Court in St. Francis College, was whether “Arab” was considered a race
separate from “Caucasian,” so as to support a claim for race discrimination under §
1981. The Court stated that “Congress intended to protect from discrimination
identifiable classes of persons who are subjected to intentional discrimination solely
because of their ancestry or ethnic characteristics. Such discrimination is racial
discrimination that Congress intended Sec. 1981 to forbid, whether or not it would be
classified as racial in terms of modern scientific theory.” Id. Thus, the Court concluded,
“if respondent on remand can prove that he was subjected to intentional discrimination
based on the fact that he was born an Arab, rather than solely on the place or nation of
his origin, or his religion, he will have made out a case under § 1981.” Id.
This Court has previously recognized that “[t]he line dividing the concepts of
‘race’ and ‘national origin’ is fuzzy at best, and in some contexts, national origin
discrimination is so closely related to racial discrimination as to be indistinguishable.”
28

Reyes v. Pharma Chemie, Inc., 890 F. Supp. 2d 1147, 1158 (D. Neb. 2012) (Gerrard,
J.) (citing Short v. Mando American Corp., 805 F. Supp. 2d 1246, 1267 (M.D. Ala.
2011)); see also St. Francis Coll., 481 U.S. at 613 (“(Brennan, J., concurring) (“The line
between discrimination based on ancestry or ethnic characteristics, . . . and
discrimination based on place or nation of origin . . . is not a bright one.”). The Eighth
Circuit has stated that a claim based on ancestry or ethnic status “may be treated as
both a race claim and a national-origin claim.” Torgerson, 643 F.3d at 1053 (citing
Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117,
1119 n. 4 (9th Cir. 1998). In Torgerson, the Eighth Circuit upheld dismissal of a § 1981
race claim based on the plaintiff’s Native-American status where the plaintiff failed to
allege that the claim was based on race rather than national origin, and never amended
his complaint to include race discrimination. Id. The court stated that “a race claim
based on Native–American status must be stated as a race claim.” Id.
The Court concludes that First Intervenors’ use of the term “Somali Muslim” is not
stated as a race claim. In following the Eighth Circuit’s direction in Torgerson, the Court
finds helpful the District of Maryland’s approach, as stated in Quraishi v. Kaiser Found.
Health Plan of the Mid-Atl. States, Inc., No. CIV. CCB-13-10, 2013 WL 2370449, at *2
(D. Md. May 30, 2013):
First, the plaintiff must demonstrate he actually faced intentional
discrimination based on his ancestry or ethnic characteristics, rather than
solely on his place of origin, in order to invoke the broad construction of
race under § 1981. Second, where a plaintiff's allegations reference only
his place of origin and do not focus on specific ethnic characteristics
associated with that place of origin, the broad construction of race under §
1981 does not apply.

29

(citing Akinjide v. Univ. of Md. E. Shore, Civ. No. DKC 09–2595, 2011 WL 4899999, *8
(D. Md. Oct. 13, 2011) (internal marks and citation omitted). Under either of these
considerations, the Third Amended Complaint fails to support First Intervenors’ race
discrimination claims. First, the Third Amended Complaint does not attempt to explain
how First Intervenors suffered discrimination on the basis of any ethnic characteristics.
The Third Amended Complaint references no physical differences or cultural attributes
of Somalis that were “used as a fulcrum for discrimination.” Garcia v. Gloor, 618 F.2d
264, 270 (5th Cir. 1980). Further, the text of the allegations focuses solely on First
Intervenors’ nationality and religious affiliation. Although First Intervenors assert that
JBS should know the skin-color distinctions of its Somali and Hispanic employees,
paragraphs 19 through 22 of the Third Amended Complaint only once use the term
“Hispanic.” (See Filing No. 721 ¶ 19 (“After hearing about the prayer accommodation
provided to the Somali Muslim employees, numerous non-Somali, non-Muslim
employees who were primarily Hispanic, refused to report to work and/or walked off
their jobs in protest on September 17, 2009.”)) Instead, paragraphs 19 through 22 refer
generally to “non-Somali, non-Muslim employees.” These references focus not on any
differences in physical or cultural attributes between Somalis and other employees, but
instead focus primarily on the First Intervenors’ national origin and religious practices.
These allegations are insufficient to support a claim for race discrimination under §
1981, and provide no further support for First Intervenors’ race discrimination claims
under Title VII.10

10

First Intervenors request that if the Court finds paragraphs 19 through 22 lacking because they
do not use the term “non-Black”, then First Intervenors should be permitted to amend the paragraphs to

30

E.

Sirad Adan’s Retaliation Claims

JBS alleges that Intervenor Sirad Adan’s retaliation claim arising under Title VII
and NFEPA must be dismissed because she failed to allege retaliation in her Charge of
Discrimination.11 (See Filing No. 753-2 at ECF 4.) Accordingly, she failed to exhaust
her administrative remedies.

First Intervenors do not challenge this assertion, and

instead request leave to amend the complain to “assert facts that conform to the
evidence previously offered regarding the unlawful racial retaliation.” (Filing No. 770 at
8.)

The Court will not permit further amendment.

As noted, evidence regarding

unlawful racial retaliation has been offered, and nothing prevented First Intervenors
from asserting those facts at an earlier time. Further, First Intervenors do not attempt to
explain why Adan’s retaliation claim should proceed.

Accordingly, Intervenor Sirad

Adan’s claim for retaliation under Title VII and NFEPA will be dismissed.
III.

Second Intervenors’ Second Amended Complaint
Regarding the Second Amended Complaint of Second Intervenors, JBS asserts

that many of the Second Intervenors must be dismissed due to their for failure to file
administrative charges. JBS also argues that all of Second Intervenors’ race-based

clarify the race of JBS’s Hispanic employees. Such an amendment would not cure the deficiencies in the
allegations. First, as noted above, the paragraphs at issue contain only a single reference to Hispanic
employees. First Intervenors’ proposed amendment does not address the fact that the majority of the
references are to the employees’ status as non-Somalis and non-Muslims. The proposed amendment
does not present additional facts to demonstrate that JBS was “was motivated by or resulted in race or
national origin discrimination.” Reyes, 890 F. Supp. 2d at 1159. Second, First Intervenors have been
given several opportunities to amend their complaint and refine their allegations, yet have failed to plead
specific facts supporting its race discrimination claims. At this stage in the proceedings, the Court
concludes that amendment would be futile. Accordingly, First Intervenors’ claims for race discrimination
in Count III of the Third Amended Complaint, will be dismissed.
11

The Charge identifies Intervenor Adan as “Sirat Adan.” However, the caption of the case
identifies her as Sirad Adan. The parties agree that Sirad Adan is the proper spelling and the Court will
refer to her accordingly.

31

claims must be dismissed for failure to state a claim. Finally, JBS asserts that Second
Intervenors’ claims under § 1981 must be dismissed in their entirety.
A.

Single-Filing Rule

Only three—Farhan Abdi, Abdirahman Yusuf, and Hassan Duwane—of the thirtytwo members of Second Intervenors filed charges of discrimination with the EEOC or
NEOC. (See Second Am. Compl. ¶ 4; Filing No. 753-3.) JBS argues that the twentynine12 Intervenors who did not file charges cannot assert any Title VII claims because
they failed to exhaust their administrative remedies and cannot take advantage of the
single filing rule.
JBS argues that even if the single-filing rule applies in this case, it cannot be
used by the Second Intervenors who failed to file charges. The Court concludes that,
for the reasons stated above with respect to First Intervenors, the non-filing Second
Intervenors are permitted to piggyback their claims under the single-filing rule. The
charges filed by Intervenors Farham Abdi and Abdirahman Ahmend Yusuf are nearly
identical to several of the charges filed by First Intervenors and Second Intervenors.
Further, most of the charges were filed on October 3, 2008, the same date as those of
all but two of the First Intervenors. (See Filing No. 753-3 at ECF 2, 3; Filing No. 753-2.)
The EEOC determination letters also specifically note that Intervenors Abdi and Yusuf
made allegations on behalf of themselves and a class of Somali Muslim employees.
12

The twenty-nine individuals are (1) Bashir Abdi; (2) Rahma Mohamed Abdi; (3) Saynab
Abdirahman, f/k/a Faydero Abdirahman; (4) Abdirizaq Abdulle; (5) Ahmed Adam; (6) Mohamed Adan; (7)
Said Ali Ahmed; (8) Sugule Ahmed; (9) Yasin Ahmed; (10) Sahra Botan; (11) Mohamed Dhadin, f/k/a
Yusuf Soldad; (12) Yusuf Dulane; (13) Amina Farah; (14) Saynab Farah; (15) Hassan Gabow; (16) Amina
Gelle; (17) Abdikhadar Hassan; (18) Mohammed Isak; (19) Mohammed Isman; (20) Musa Abdalla
Mohamed; (21) Nimo Mohamed; (22) Omar Mohamed; (23) Hawa Mohamud; (24) Abdighani Muse; (25)
Asha Muse; (26) Mukhtar Omar; (27) Ayan Osman; (28) Abdirashid Ahmed Shire, f/k/a Ali Shire; and (29)
Hodan Sirad, f/k/a Sugra Olad.

32

(See Filing No. 775-1 at ECF 14, 17.) Accordingly, the charges gave “notice to the
employer that the consequences of an individual plaintiff's charge may transcend an
insolated individual claim.” Kloos, 799 F.2d at 400. The Court concludes that the nonfiling Second Intervenors will not be dismissed due to their failure to file individual
administrative claims.
B.

Title VII Race Discrimination Claims

Like the claims of First Intervenors, Second Intervenors’ Second Amended
Complaint fails to allow the court to draw a reasonable inference that JBS is liable for
race discrimination. Second Intervenors argue their allegations are sufficient for each of
their race-based claims under the notice pleading requirements of Iqbal and Twombly.
In the context of discrimination claims, the Supreme Court has “negated any need to
plead a prima facie case.”

Blomker v. Jewell, ---F.3d---, No. 15-1787, 2016 WL

4157594, at *2 (8th Cir. Aug. 5, 2016) (citing Swierkiewicz v. Sorema, 534 U.S. 506,
512 (2002)). However, the plausibility pleading standard under Twombly “asks for more
than a sheer possibility that a defendant has acted unlawfully.”

Blomker, 2016 WL

4157594, at *2 (quoting Twombly, 550 U.S. at 570). Further, the “elements of the prima
facie case are not irrelevant to a plausibility determination in a discrimination suit” and
“are part of the background against which a plausibility determination should be made.”
Id. (citations and internal marks omitted); see also Gregory v. Dillard's, Inc., 565 F.3d
464, 473 (8th Cir. 2009) (en banc) (alteration in original) (quotations and citations
omitted) (“While a plaintiff need not set forth detailed factual allegations or specific facts
that describe the evidence to be presented, the complaint must include sufficient factual
allegations to provide the grounds on which the claim rests.”).
33

Second Intervenors’ Second Amended Complaint presents claims of race and
color-based hostile work environment, harassment, discrimination, and retaliation under
Title VII and § 1981. Second Intervenors’ race-related factual allegations are (1) they
are black (see Second Am. Compl., Filing No. 724 ¶¶ 44, 46), and (2) three of the
Second Intervenors—Yasin Ahmed, Amina Farah, and Amina Gelle—were subjected to
unspecified “racist remarks” or “racist insults” on an unidentified number of occasions
(id. ¶¶ 83-85).

The only other references to the race of Second Intervenors are

contained in the Claims for Relief as general descriptive summaries of the basis for their
various discrimination claims. (See, e.g., id. ¶¶ (“During 2007, 2008, and 2009 Plaintiff
Intervenors were subjected to discriminatory treatment and harassment in . . . being
subjected to racist, offensive insults by JBS supervisors and management on the basis
of their religion, Islam, race, Black, and national origin, Somali.”).)
These allegations are insufficient to support a claim for any race-based hostile
work environment or harassment claims under Title VII or § 1981. To establish a race
based hostile work environment and harassment claim, plaintiffs must show “(1) they
belong to a protected group, (2) they were subjected to unwelcome racial harassment,
(3) the harassment was because of their race, and (4) the harassment was sufficiently
severe or pervasive so as to affect ‘a term, condition, or privilege of [their]
employment.’” Ellis v. Houston, 742 F.3d 307, 319 (8th Cir. 2014) (quoting Singletary v.
Mo. Dep't of Corr., 423 F.3d 886, 892 (8th Cir. 2005)). The Eighth Circuit recently held
in Blomker that a complaint for hostile work environment and harassment failed to state
a claim because it failed to plead that the harassment was “severe or pervasive enough
to create an objectively hostile or abusive work environment.”
34

Blomker, 2016 WL

4157594, at *3 (citing Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 801 (8th
Cir. 2009)). The court noted that “[m]ore than a few isolated incidents are required” and
“offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Id. Similarly, in
this case, Second Intervenors allege race discrimination based solely on vague, isolated
comments made to only a few employees. The Second Amended Complaint fails to
provide any specificity as to the nature of the comments, nor does it provide any
indication of their severity or pervasiveness. Moreover, the thrust of the allegations
focuses almost exclusively on JBS’s response to the Second Intervenors’ religious
practices rather than their race. Thus, the Second Amended Complaint fails to state a
claim for hostile work environment and harassment under Title VII or § 1981.
Similarly, the Second Amended Complaint fails to state a claim for any racebased retaliation claims. “The elements of a retaliation claim under § 1981 and Title VII
are (1) protected activity, (2) subsequent adverse employment action, and (3) a causal
relationship between the two.” Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir.
1997). In Blomker, the Eighth Circuit held that the complaint failed to state a claim for
retaliation as a matter of law for a lack of causation. 2016 WL 4157594, at *6. The court
reasoned that the plaintiff had “failed to plausibly allege that the retaliation was a but-for
cause of [the employer’s] adverse action.” Id. The allegations with respect to race
contained in the Second Amended Complaint fail to describe a causal relationship
between protected activity and subsequent adverse employment action.

As noted

above, the allegations focus almost exclusively on the Second Intervenors’ activity with
respect to their religious practices. To create a causal connection would require the
35

Court to “conjure up unpled allegations” regarding JBS’s treatment of the Intervenors on
the basis of their race.

See Gregory, 565 F.3d at 473. Accordingly, the Second

Amended Complaint fails to state a claim for race-based retaliation under Title VII and §
1981.
C.

Remaining Section 1981 Claims

Counts IV and V of the Second Amended Complaint assert claims under § 1981
based on the Second Intervenors’ race, color, national origin, and religion. For the
reasons discussed above, Second Intervenors have not alleged facts sufficient to
support their race-based claims. As noted, though Title VII prohibits discrimination on
the basis of national origin and race, § 1981 does not support claims based on national
origin. Torgerson, 643 F.3d at 1052-53. Section 1981 also does not authorize claims
based on religion. See Saint Francis Coll., 481 U.S. at 606; Anderson v. Conboy, 156
F.3d 167, 170 (2d Cir. 1998) (“It is also settled that Section 1981 does not prohibit
discrimination on the basis of gender or religion.”); Anooya v. Hilton Hotels Corp., 733
F.2d 48, 50 (7th Cir. 1984) (stating that § 1981 “does not protect against discrimination
based on sex or religion or age.”).

Accordingly, Counts IV and V of the Second

Amended Complaint will be dismissed in their entirety.
CONCLUSION AS TO MOTION FOR JUDGMENT ON THE PLEADINGS
For the reasons stated, the Motion for Judgment on the Pleadings will be granted
in part and denied in part. The EEOC will not be permitted to seek make-whole relief on
behalf of already dismissed individuals. In general, at this stage, the Court will permit
Intervenors who failed to file an administrative charges of discrimination to proceed
under the single-filing rule. Further, the operative complaints of both First Intervenors
36

and Second Intervenors are devoid of allegations supporting claims for race or national
origin discrimination, and those claims will be dismissed
SUMMARY JUDGMENT
FACTUAL BACKGROUND
The parties have presented a voluminous factual record that includes thousands
of pages of exhibits and hundreds of individually numbered statements of material fact.
JBS asserts 195 individually numbered undisputed material facts as required by
NECivR 56.1. First Intervenors responded to each of JBS’s statements In accordance
with NECivR 56.1, and included an additional 282 individually numbered statements
labeled as First Intervenors’ “Statement of Additional Disputed Material Facts.” The
EEOC also responded to each of JBS’s statements and included an additional 509
individually numbered statements labeled as the “EEOC’s Statement of Additional
Material Facts.” Several of the EEOC’s additional material facts are identical to those
asserted by First Intervenors.
The Local Rules do not require an “additional statement of material facts,” nor do
they address whether a moving party must respond to additional statements of material
facts. The Eighth Circuit has upheld sanctions for “Statements of Additional Material
Facts” where “voluminous filings were replete with conclusory allegations and legal
argument, obfuscating any concise and specific statements of material fact that were
contained within their pages.” Nw. Bank & Trust Co. v. First Illinois Nat'l. Bank, 354
F.3d 721, 725 (8th Cir. 2003). Rules such as NECivR 56.1 are designed to “prevent a
district court from engaging in the proverbial search for a needle in the haystack.” Nw.
Bank & Trust Co., 354 F.3d at 725.
37

JBS argues that the additional statements of fact submitted by First Intervenors
and the EEOC are merely a tactic to make it appear that numerous factual issues
remain to be determined. While the Court will not conclude that such a tactic is at play,
the statements of additional material facts filed by the EEOC and First Intervenors are
voluminous and, in large part, repeat allegations and rely on the same evidence
contained in responses to JBS’s statement of undisputed material facts. The Court has
reviewed the entire factual and evidentiary record in this case, but will limit its summary
of the facts to those specifically referenced by the EEOC and First Intervenors in their
respective arguments. See id.
The following is a summary of the pertinent facts stated in the parties’ briefs,
supported by pinpoint citations to evidence in the record,13 according to NECivR 56.114
and Federal Rule of Civil Procedure 56,
I.

Procedural Background
Pursuant to this Court’s Order (Filing No. 665) regarding case progression for

Phase II and the grouping of claimants for Phase II, this Motion for Summary Judgment

13

JBS presented numerous facts that were included within the Court’s Findings of Fact and
Conclusions of Law based on the Phase I trial. The EEOC and Intervenors oppose the use of such facts,
asserting that “law of the case” does not apply. Because the essential portions of the Court’s analysis do
not rely on any facts previously determined, the Court need not decide whether the law of the case
applies at this time.
14

See NECivR 56.1(b)(1) (effective December 1, 2015):

The party opposing a summary judgment motion should include in its brief a concise
response to the moving party’s statement of material facts. The response should
address each numbered paragraph in the movant’s statement and, in the case of any
disagreement, contain pinpoint references to affidavits, pleadings, discovery responses,
deposition testimony (by page and line), or other materials upon which the opposing party
relies. Properly referenced material facts in the movant’s statement are considered
admitted unless controverted in the opposing party’s response.

38

pertains to four Group B claimants: Shamso Abshir (“Abshir”), Tufah Hassan (formerly
known as Sahara Noor and referred to herein as Sahara Noor (“Noor”)), Abdiaziz Jama
(“Jama”) and Shukri Wais (“Wais”) (referred to collectively as “Claimants”). The EEOC
seeks individual relief on behalf of all four Claimants. First Intervenors seek individual
relief for three of the Claimants: Abshir, Noor, and Wais. None of the four Claimants is
a member of the Second Intervenors.
All claims asserted by the EEOC and First Intervenors relate to the termination of
Claimants’ employment on September 19, 2008. The EEOC asserts three claims under
Title VII: (1) religious discrimination; (2) national origin discrimination; and (3) retaliation
based on Claimants’ requests for religious accommodations and complaints about
denial of those requests. (EEOC’s Fourth Am. Compl., Filing No. 730, ¶¶ 47–71.)
Abshir, Noor and Wais—as members of First Intervenors—assert four claims: (1)
religious discrimination in violation of Title VII and the NFEPA; (2) national origin
discrimination under Title VII, the NFEPA, and 42 U.S.C. § 1981; (3) race/color
discrimination under Title VII, the NFEPA, and § 1981; and (4) retaliation under Title VII,
the NFEPA, and § 1981, based on their requests for religious accommodation,
complaints about denial of accommodations, reports of “unlawful religious practices,”
and JBS’s “failure to provide religious accommodation.” (Third Am. Compl., Filing No.
721, ¶¶ 2, 35–47.) For the reasons stated above, Abshir’s and Noor’s Claims under the
NFEPA are time barred. Further, the claims of Abshir, Noor, and Wais for national
origin discrimination under § 1981 will be dismissed, and their claims for race/color
discrimination will be dismissed for failure to state a claim.
II.

Factual Background
39

This case involves disputes regarding Somali Muslim employees’ requests for
religious accommodation involving breaks for prayers. The events central to the Motion
occurred during Ramadan in 2008. On Friday, September 12, 2008, JBS management
and representatives of the United Food and Commercial Workers Union Local No. 22
(the “Union”) met with representatives of Somali Muslim employees.

The Muslim

employee representatives stated that Muslim employees desired a mass break at
sunset in order to perform their maghrib prayer. At the meeting, several
accommodations were discussed, including changing meal times to coincide with prayer
times. JBS representative Dennis Sydow (“Sydow”) told Muslim representatives that
JBS could not meet their requests because he believed the requests violated the meal
time requirements of the employees’ collective bargaining agreement (“CBA”).
On September 15, 2008, JBS leadership, Union representatives, and Muslim
employees met again to discuss accommodation requests. Muslim employees
explained their prayer requests and the required prayer times. JBS management told
the Muslim employees that they could not meet their requests, citing productivity, safety
concerns in allowing a large number of employees to leave the line at the same time, as
well as the requirements of the CBA.
On September 15, 2008, a large group of Somali Muslim employees gathered
outside JBS’s Grand Island, Nebraska, facility to protest JBS’s refusal to accommodate
their prayer requests and refused to report for work. The Somali Muslim employees
continued to refuse to work on September 16, 2008. In the afternoon of September 16,
2008, JBS management, Union officials, and Somali Muslim representatives met to
discuss prayer accommodations. An agreement was reached that for the remainder of
40

Ramadan, the B-shift meal break would be a mass break at 7:45 p.m.; the shift would
be shortened by 15 minutes to 7¾ hours; and the employees who failed to report for
work on September 15 and 16 would have a letter placed in their files. JBS sent a
notice to Union representatives stating that further work stoppages could result in
termination. Claimants deny they ever receiving notice from Union officials.
On Wednesday, September 17, 2008, an unknown person posted signs around
the plant in Spanish referencing the 7:45 p.m. break time and encouraging employees
to “fight for their rights.” After hearing rumors about the mass meal break at 7:45 and
the shortened shift, a large group of employees, many of whom were Hispanic, walked
off the job and refused to return to the production floor. JBS management and union
representatives told the protesting employees that they were violating the CBA and
needed to continue working. B-shift operations were cancelled that night due to lack of
employees.
The following morning, Thursday, September 18, 2008, several hundred Hispanic
employees on the A shift walked off the job and/or refused to start working to protest the
company’s decision to provide religious accommodation to the Somali Muslim
employees. In order to get the plant operating and avoid a shutdown, JBS management
decided not to implement the agreement for the 7:45 p.m. mass break and to return the
meal break to its original time.
In the afternoon or evening of September 18, 2008, JBS management told
employees, through their Union leadership, that the next group of employees that
refused to work would be terminated. (Schult Phase II Dep., Filing No. 793-32, 170:1–9,
170:22–171:14.)

Specifically, Doug Schult (“Schult”) told two Union leaders, Kurt
41

Brandt and Oscar Saenz, to inform employees that the next group of employees that
refused to work would be terminated. (Schult Phase II Dep., Filing No. 793-32, 170:22–
171:10.)

JBS officials John Shandley (“Shandley”) and James Colwell (“Colwell”)

instructed Sydow and human resources representative Mary Chmelka (“Chmelka”) to
tell the Somali leaders that the next group of employees that refused to work would be
terminated. (Schult Phase II Dep., Filing No. 793-32, 171:24–172:5.)
That night, at approximately 7:45 p.m., prior to the start of the meal break, ten to
fifteen Somali Muslim employees left their positions while the lines were operating;
these employees were sent to speak to Chmelka.

Chmelka began the process of

preparing written disciplinary actions for these ten to fifteen employees for leaving the
line without permission, but had time to prepare only one warning notice before the
meal break began at 8:00 p.m., at which time Chmelka sent the employees to the
cafeteria so they could take their break and end their Ramadan fast. Chmelka planned
to discipline the remaining employees after the meal break, but subsequent events in
the cafeteria interrupted her plans.
In the cafeteria, a group of Somali Muslim employees began to engage in a loud
demonstration to protest JBS’s decision to rescind the break-time agreement. At the
end of the meal break, approximately 70–80 Somali Muslim employees remained in the
cafeteria and police were called. Several Somali Muslim employees left the plant. The
parties dispute whether the employees left out of protest or whether they were told to
leave by JBS management.
Later that night, Shandley, Schult, and Colwell met in Sydow’s office. Shandley,
Schult, and Colwell decided to terminate the employees who refused to go back to work
42

and left the plant that night. Schult, Colwell, and Shandley believed that the employees
who left the plant that night understood that, if they did not return to work, they could be
terminated. Chmelka was given the task to investigate and determine which employees
left the plant and did not return to work. Chmelka relied on the plant’s payroll clerks, who
looked at the “punch outs” on the plant’s Kronos time-keeping system to determine which
employees did not return to work after the meal break. The payroll clerks also spoke to
all the supervisors in the fabrication department to identify which employees had not
returned to work that evening. Once the employees who left the plant were identified,
their names were placed on a list of employees to be terminated.
All four Claimaints—Abshir, Jama, Noor and Wais—were on the list of employees
to be terminated. Several non-Somali, non-Muslim Muslim employees were included on
the list of employees to be terminated. On September 19, 2008, when the employees
who failed to return to work the previous night arrived at the plant, they were informed of
their termination and given their final paychecks. About 80 Somali Muslim employees
were discharged, including Abshir, Jama, Noor and Wais. The employees who were
terminated were given a letter stating that they could call Chmelka at her direct
telephone line with any questions. JBS learned that some of the employees who were
terminated did not actually walk out the previous night, and were terminated by mistake;
those employees were allowed to return to work. Several Somali Muslim employees
returned to work after the meal break and did not leave the plant during the shift on
September 18, 2008, and were not terminated on September 19, 2008.
STANDARD OF REVIEW

43

“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th
Cir. 2013) (citing Fed. R. Civ. P. 56(c)). “[S]ummary judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th
Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) cert. denied, 132 S. Ct. 513 (2011)). In
reviewing a motion for summary judgment, the Court will view “all facts and mak[e] all
reasonable inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five
Star Custom Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving
party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a
proper summary judgment motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving
party’s claims by showing “the absence of a genuine issue of material fact.” Id. at 325.
Instead, “the burden on the moving party may be discharged by ‘showing’ . . . that there
is an absence of evidence to support the nonmoving party’s case.” Id. (quoting Fed. R.
Civ. P. 56(c)).
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “must do more than simply show that there is some
44

metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (internal
quotation marks omitted) (quoting Torgerson, 643 F.3d at 1042). “[T]he mere existence
of some alleged factual dispute between the parties” will not defeat an otherwise
properly supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d
745, 751 (8th Cir. 2011) (internal quotation marks omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986)).
In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (internal quotation marks omitted) (quoting Torgerson, 643 F.3d at 1042).
Otherwise, where the Court finds that “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” there is no “genuine issue for trial”
and summary judgment is appropriate. Torgerson, 643 F.3d at 1042 (internal quotation
marks omitted) (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)).
DISCUSSION
JBS presents two principal arguments in support of its Motion for Summary
Judgment. First, it argues that no material disputed facts could support a conclusion
that its proffered reason for terminating the Claimants was pretext for race, religion, or
national-origin based discrimination. Second, JBS alleges that Claimants cannot prove
their retaliation claims as a matter of law.
I.

Unlawful Termination based on Race, Religion, and/or National Origin

45

Abshir, Noor and Wais have alleged religious discrimination in contravention of
Title VII and the NFEPA; national origin discrimination under Title VII, the NFEPA, and
Section 1981; and race/color discrimination under Title VII, the NFEPA, and Section
1981.15 The EEOC has alleged discrimination under Title VII on the basis of religion
and national origin. Courts analyze claims arising under these statutes in accordance
with the McDonnell Douglas burden-shifting framework. See Orr v. Wal-Mart Stores,
Inc., 297 F.3d 720, 723 (8th Cir. 2002); Davis v. KARK-TV, Inc., 421 F.3d 699, 703 (8th
Cir. 2005). See also McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). A plaintiff
without direct evidence of discrimination can survive summary judgment “by creating the
requisite inference of unlawful discrimination through the McDonnell Douglas analysis,
including sufficient evidence of pretext.” Griffith v. City of Des Moines, 387 F.3d 733
(8th Cir. 2004). JBS concedes for purposes of this Motion that Claimants have stated a
prima facie case for discrimination: (1) Claimants are members of a protected group; (2)
Claimants were qualified for their position; and (3) Claimants were discharged; and (4)
the Claimants were discharged “under circumstances giving rise to inferences of
discrimination.” See McDonnell Douglas, 411 U.S. at 802.
Claimants’ prima facie case creates a presumption of discrimination and shifts
the burden to Defendant to articulate a legitimate, non-discriminatory reason for
termination. Id.; see also Hilde v. City of Eveleth, 777 F.3d 998, 1004 (8th Cir. 2015).
On September 19, 2008, the stated reason for Claimants’ discharge was (1) refusing to
return to work after the meal break the previous night, which was insubordination, and

15

As noted above, some of these claims have already been dismissed.

46

(2) withholding work in violation of the “No Strike” provision of the CBA. Claimants
concede that JBS stated a legitimate reason for firing the Claimants.
Because JBS has asserted a legitimate, non-discriminatory reason for Claimants’
termination, the burden shifts back to Claimants to show JBS’s proffered reason was
pretextual. Wimbley v. Cashion, 588 F.3d 959, 962 (8th Cir. 2009). To prove pretext, a
plaintiff “must demonstrate that a discriminatory animus lies behind [the employer’s]
neutral explanations.” Arnold v. Nursing and Rehab. Center at Good Sheperd, LLC,
471 F.3d 843, 847 (8th Cir. 2006). “A plaintiff seeking to survive an employer's motion
for summary judgment must therefore show a genuine issue for trial about whether the
employer acted based on an intent to discriminate rather than on a good-faith belief that
the employee committed misconduct justifying termination.” McCullough v. Univ. of
Arkansas for Med. Scis., 559 F.3d 855, 862 (8th Cir. 2009). “[Eighth Circuit] precedent
establishes that the ‘critical inquiry in discrimination cases like this one is not whether
the employee actually engaged in the conduct for which he was terminated, but whether
the employer in good faith believed that the employee was guilty of the conduct
justifying discharge.’” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002
(8th Cir. 2012) (quoting McCullough, 559 F.3d at 861–62 (8th Cir. 2009)).
Claimants argue that JBS could not have had a good-faith belief that the
Claimants were guilty of the conduct justifying the discharge because JBS’s
investigation of Claimants’ conduct was insufficient.

Claimants also argue that the

circumstances of the termination show the real reason for termination was
discrimination on the basis of Claimants’ race, religion, and/or national origin.

The

Court concludes that the investigation shows no evidence of discriminatory motive, and
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the circumstances of the termination do not suggest the proffered reasons for
termination were pretextual.
A.

Sufficiency of JBS’s Investigation

Claimants argue that JBS’s investigation of Claimants’ involvement with the
protest in the cafeteria was not conducted fairly or in good faith. Specifically, Claimants
argue that JBS’s investigation was cursory at best and that an adequate investigation
would have shown that Abshir, Jama, and Wais were told by management to leave the
plant on the night of the protest.

“To overcome a motion for summary judgment,

therefore, [Claimants] must present sufficient evidence that the employer acted with an
intent to discriminate, not merely that the reason stated by the employer was incorrect.”
Pulczinski, 691 F.3d at 1003.

With respect to an employer’s investigation of the

proffered reason for termination,“[t]he appropriate scope of investigation is a business
judgment, and shortcomings in an investigation do not by themselves support an
inference of discrimination.” Wierman v. Casey’s Gen’l Stores, 638 F.3d 984, 997 (8th
Cir. 2011). An investigation is insufficient when it prevents the employer “from making a
‘reasonably informed and considered decision’ prior to terminating [the employee].”
Chivers v. Wal-Mart Stores, Inc., 641 F.3d 927, 935 n.6 (8th Cir. 2011) (quoting Smith v.
Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)).
To conduct its investigation, JBS reviewed time-keeping records and spoke to
supervisors to identify the employees who left the plant before the end of the B-shift on
September 18, 2008. (See Chmelka Phase II Dep., Filing 793-25, 162:23–164:25.)
The employees who were identified from this inquiry, including Claimants, were
terminated. (Chmelka Phase II Dep., Filing No. 793-25, 158:16–24.) Schult, Colwell,
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and Shandley each testified that they believed that the employees who left the plant that
night understood that, if they did not return to work, they could be terminated.
(Shandley Phase II Dep., Filing No. 793-34, 179:23–180:21); (Colwell Phase II Dep.,
Filing No. 793-27, 206:3–25); (Schult Phase II Dep., Filing No. 793-32, 74:2–76:14,
75:7–8, 175:21–176:4, 179:11–16.)
The Court cannot say that this investigation prevented JBS from making a
reasonably well-informed decision regarding who violated the notice given through the
Union on September 16, 2008. Claimants’ principal argument is that they were told by
their supervisors on September 18, 2008, that they should leave the plant or were given
permission to leave. Even assuming this contention is true, it does not undermine the
scope of JBS’s investigation nor does it suggest a discriminatory animus.

Several

Somali Muslim employees returned to work after the meal break and did not leave the
plant during the shift on September 18, 2008, and were not terminated on September
19. After the investigation, JBS learned that some of the employees who were
terminated did not actually walk out the previous night, and were terminated by mistake;
those employees were allowed to return to work. Further, the employees who were
terminated were given a letter stating that they could call Chmelka at her direct
telephone line with any questions. (Chmelka Phase II Dep., Filing No. 793-25, 168:1–
13, 208:7–10; Filing No. 794-33.)
Based on these undisputed facts, JBS’s investigation leading to the termination
letters does not support any inference of discrimination. The JBS decision-makers’
good faith belief, even if ultimately incorrect, was based on “objective evidence that
corroborates the conclusion of the evaluators” and was “sufficient to justify a grant of
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summary judgment.”

Richey v. City of Indep., 540 F.3d 779, 783 (8th Cir. 2008).

Claimants failed to demonstrate any genuine issue of material fact, suggesting that
discriminatory animus may have influenced JBS’s chosen method of investigation.
B.

Work Environment

Claimants also assert that JBS’s knowledge of the hostile work environment they
suffered shows pretext for discrimination. The Eighth Circuit has consistently rejected
such theories. See, e.g. Wheeler, 360 F.3d at 859 (stating that where plaintiffs were not
alleging a hostile work environment claim, comments reflecting racial animus made by
coworkers who were not the decision-makers were irrelevant and could not demonstrate
pretext); Clark v. Johanns, 460 F.3d 1064, 1068 (8th Cir. 2006) (concluding that district
court properly refused to consider evidence of hostile work environment toward women
when deciding whether the plaintiff established that the employer’s stated reason for not
renewing her employment contract was a pretext for unlawful discrimination based on
sex).
It is undisputed that Shandley, Schult, and Colwell made the decision to
terminate the employment of all of the employees they believed refused to return to
work after the meal break on September 18, 2008. There is no allegation, much less
any evidence, that Shandley, Schult or Colwell made any comments reflecting a
discriminatory animus. Claimants cannot rely on alleged comments or conduct by other
persons to establish that Shandley’s, Schult’s, and Colwell’s stated reasons for the
termination of Claimants’ employment were a pretext for unlawful discrimination.
C.

Treatment of Hispanic Employees

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Claimants argue that pretext for discrimination is shown because JBS treated
Somali Muslim employees less favorably than similarly situated Hispanic employees.
“While instances of disparate treatment can support a claim of pretext, [the plaintiffs]
have the burden to prove that they and [the comparators] were similarly situated in all
relevant respects – a rigorous standard at the pretext stage.” Torgerson, 643 F.3d at
1051. “Employees are similarly situated when they are involved in or accused of the
same offense and are disciplined in different ways.” Wheeler v. Aventis Pharm., 360
F.3d 853, 858 (8th Cir. 2004) abrogated on other grounds by Torgerson, 643 F.3d at
1043 (emphasis in original).

To be similarly situated, “the individuals used for

comparison must have dealt with the same supervisor, have been subject to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.” Wierman, 638 F.3d at 994 (quoting Cherry v. Ritenour Sch. Dist., 361
F.3d 474, 479 (8th Cir. 2004)). In claiming pretext on this basis, the Claimants’ “burden
for establishing ‘similarly situated’ at the pretext stage is rigorous.” Wheeler, 360 F.3d
at 858.
As of September 18, 2008, both the Somali Muslim employees and the Hispanic
employees had engaged in work stoppages. On September 15, 2008, a large group of
Somali Muslim employees gathered outside the facility to protest JBS’s refusal to
accommodate their prayer requests and refused to report for work. The Somali Muslim
employees continued to refuse to work on September 16, 2008. On September 17,
2008, hundreds of Hispanic employees gathered at the Grand Island plant to protest
JBS’s decision to change the dinner break start time to accommodate the Somali,
Muslim employees’ religious beliefs and practices. These Hispanic protesters refused
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to start and/or continue to work on the B shift despite instructions and statements from
management and union representatives that they were violating the CBA. The following
morning, Thursday, September 18, 2008, several hundred Hispanic employees on the A
shift walked off the job and/or refused to start working to protest their understanding of
JBS’s decision to provide religious accommodation to the Somali Muslim employees. At
that point, as of September 18, 2008, both Somali Muslim and Hispanic employees had
engaged in work stoppages and both had been advised that, to the best of JBS’s
knowledge, their conduct violated the CBA and could result in discipline. (Filing No.
793-11.)
As a result of the refusal to work by both the Hispanic and Somali Muslim
employees, in the afternoon or evening of September 18, 2008, JBS management told
employees, through their Union leadership, that the next group of employees that
refused to work would be terminated. (Schult Phase II Dep., Filing No. 793-32, 170:1–
9, 170:22–171:14.) Specifically, Schult told two Union leaders, Kurt Brandt and Oscar
Saenz, to inform employees that the next group of employees that refused to work
would be terminated. (Schult Phase II Dep., Filing No. 793-32, 170:22–171:10.)
Shandley and Colwell instructed Sydow and Chmelka to tell the Somali leaders that the
next group of employees that refused to work would be terminated. (Schult Phase II
Dep., Filing No. 793-32, 171:24–172:5.)
The definitive warning from JBS leaders on September 18, 2008, separates the
Somali Muslims from Hispanic employees for purposes of showing pretext. Prior to that
point, JBS had warned employees that work stoppages could result in discipline,
including termination.

Both Hispanic employees and Somali Muslim employees
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engaged in work stoppages without being terminated.

However, after JBS leaders

communicated their zero-tolerance position on September 18, 2008, only Somali
Muslim employees engaged in a work stoppage. Regardless of whether the individual
Claimants actually received this communication from Union leadership, the undisputed
evidence shows that JBS reasonably relied on Union leaders to communicate the
message.

Further, the act of communicating the message to Union leaders

demonstrated an effort by JBS to communicate to all groups that it would strictly enforce
the terms of the collective bargaining agreement.

Because only Somali Muslim

employees engaged in a work stoppage after this communication, any comparison to
Hispanic employees for pretext purposes is improper. See Wierman, 638 F.3d at 994
(“[T]he individuals used for comparison must have dealt with the same supervisor, have
been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.”) Claimants have failed to meet their heavy
burden of showing Hispanic employees and Somali Muslim employees were similarly
situated for purposes of establishing pretext.
The undisputed evidence demonstrates that Claimants failed to show any issue
of material fact remains as to whether JBS’s proffered reason for termination was
pretext for unlawful discrimination.

The only potential link between JBS’s proffered

reason for termination and Claimants’ assertions of discrimination on the basis of race,
religion, or national origin, is that Somali Muslim employees were treated unfairly
compared to similarly situated non-Muslim, non-Somali employees. For the reasons
stated, the groups of employees were not similarly situated. Accordingly, Claimants

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cannot establish pretext and their claims based on race, religion, national-origin
discrimination will be dismissed.
II.

Retaliation
“To survive a motion for summary judgment, [Claimants] must show a prima

facie case of retaliation and must show the proffered legitimate non-retaliatory reasons
for [their] termination were pretextual.” Gibson v. Geithner, 776 F.3d 536, 540 (8th Cir.
2015) (applying the burden-shifting analysis of McDonnell Douglas because the plaintiff
lacked direct evidence of discrimination). Under McDonnell Douglas, a Claimant bears
the initial burden of establishing a prima facie showing of retaliation. Id. “To establish a
prima facie retaliation claim under Title VII, an employee must show: (1) he engaged in
protected conduct; (2) a reasonable employee would have found the retaliatory action
materially adverse; and (3) the materially adverse action was causally linked to the
protected conduct.” Id. (citing Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021 (8th Cir.
2011)). If Claimant makes this prima facie showing, the burden shifts to JBS to
articulate a legitimate, non-retaliatory reason for the adverse action. Id. Once JBS
does so, the burden shifts back to Claimants to show Claimants’ proffered reason was
pretext. Id. (citing McDonnell Douglas, 411 U.S. at 802).
Here, the adverse action was the terminations that occurred after JBS’s
investigation revealed that the Claimants left work without authorization. That adverse
action was not causally linked to any protected conduct. Accordingly, Claimants have
failed to make a prima facie showing of retaliation. Even if a prima facie showing were
inferred, JBS articulated a legitimate, non-retaliatory reason for the adverse action and
the Claimants cannot demonstrate genuine issues of material fact as to pretext,
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because “[t]he relevant inquiry is whether [JBS] believed [Claimants were] guilty of the
conduct justifying discharge.” Chivers, 641 F.3d at 934 (emphasis in original) (quoting
Richey, 540 F.3d at 784). “This is because ‘if the employer takes an adverse action
based on a good faith belief that an employee engaged in misconduct, then the
employer has acted because of perceived misconduct, not because of protected status
or activity.’” Id. (quoting Richey, 540 F.3d at 784).
The undisputed evidence shows that JBS terminated Claimants on a good faith
belief that they engaged in misconduct under the CBA by leaving work without
authorization. Whether or not the Claimants knew that JBS would enforce the CBA and
terminate employees who left work without authorization, the evidence demonstrates
that JBS’s zero-tolerance warning preceded the Somali Muslims’ protest later that
evening. Thus, it cannot be said that JBS’s decision to enforce the CBA was a reaction
to Claimants’ protest activities later that night.
The evidence before the Court demonstrates that Claimants were terminated
“because of perceived misconduct, not because of protected status or activity.” See id.
(citation omitted). Accordingly, Claimants’ retaliation claims will be dismissed.
CONCLUSION AS TO MOTION FOR SUMMARY JUDGMENT
For the reasons stated above, the Motion for Summary Judgment will be granted.
The EEOC may not assert claims on behalf of the Claimants for religious or national
origin discrimination, or retaliation, as alleged in Counts I, II, and III of the EEOC’s Third
Amended Complaint (Filing No. 723). The claims of Abshir, Noor and Wais asserted in
Counts I, II, III, and IV of the First Intervenors’ Third Amended Complaint (Filing No.
721) are likewise dismissed.
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IT IS ORDERED:
1.

The Motion for Partial Judgment on the Amended Phase II Pleadings
(Filing No. 751), is granted in part, as follows:
a.

The EEOC may not assert claims on behalf of the following
individuals: (1) Fadumo Abdi; (2) Ifra Abdullahi; (3) Abdiwali H.
Adan; (4) Abdisalaan Ahmed; (5) Leyla Ahmed; (6) Kaltun Ali; (7)
Rahma Hussein; (8) Fowsiya Ibrahim; (9) Mustafa Jama; (10)
Ahmed Jibril; (11) Hawo

Mohamed; (12) Muna Mohamed; (13)

Sahra Mohamud; (14) Said Nuuh; (15) Abdifatah Warsame; (16)
Abdiaziz Yusuf; (17) Ahmed Hassan Yusuf; (18) Maymun Yusuf;
(19) Mohamud Einead; and (20) Ali Salah;
b.

The claims of Intervenors (1) Hodan Abdulle, (2) Shamso Abshir,
(3) Astur Egal Nur, (4) Khadija Hassan, (5) Tufah Hassan (f/k/a
Sahara Noor), (6) Khadro Osman, and (7) Deeq Said, arising under
NFEPA, are dismissed, with prejudice;

c.

All claims asserted by First Intervenors (Abdi Mohamed, et al.) for
discrimination on the basis of national origin under 42 U.S.C. §
1981, as alleged in Count II of their Third Amended Complaint, are
dismissed, with prejudice;

d.

All claims asserted by First Intervenors (Abdi Mohamed, et al.) for
discrimination on the basis of race, as alleged in Count III of their
Third Amended Complaint, are dismissed, with prejudice;

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e.

Intervenor Sirad Adan’s claim for retaliation under Title VII and
NFEPA, is dismissed, with prejudice;

f.

All claims asserted by Second Intervenors (Farhan Abdi, et al.) in
their Second Amended Complaint for discrimination and retaliation
on the basis of race under Title VII and § 1981 are dismissed, with
prejudice;

g.

All claims asserted by Second Intervenors (Farhan Abdi, et al.) in
Counts IV and V of the Second Amended Complaint, are
dismissed, with prejudice;

h.

The Motion for Judgment on the Pleadings is otherwise denied;

2.

The Motion to Dismiss Parties (Filing No. 781), is granted;

3.

Any claims asserted by Intervenors (1) Asli Abdille Abdullahi a/k/a Ambiya
K. Roble, (2) Said Adoow, (3) Noor Ahmed, (4) Ahmed Farah Ali, (5) Ayan
Ali, (6) Rashid Yusuf Hundule, (7) Abdirisak Adan Abdulahi a/k/a Hussein
Hussein, (8) Abdulkadir Jama, (9) Mohamed Jama, (10) Abdalle Hassan
Mahamud, (11) Hanad Mohammed, (12) Yusuf Hassan Mohamud a/k/a
Abdalle Ali Mohamud, (13) Astur Mur a/k/a Astur Nur, (14) Warsame Nur,
(15) Ali Abdi Hakim Said, and (16) Abdulqani Yusuf, are dismissed, with
prejudice;

4.

The Motion for Summary Judgment (Filing No. 791) is granted;

5.

The EEOC’s claims on behalf of the Claimants for religious or nationalorigin discrimination, or retaliation, as alleged in Counts I, II, and III of the

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EEOC’s Third Amended Complaint (Filing No. 723), are dismissed, with
prejudice; and
6.

The claims of Abshir, Noor and Wais asserted in Counts I, II, III, and IV of
the Third Amended Complaint of the First Intervenors (Abdi Mohamed, et
al.) (Filing No. 721), are dismissed, with prejudice.

Dated this 19th day of August, 2016
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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