Equal Employment Opportunity Commission v. Mavis Discount Tire, Inc. et al

Filing 42

OPINION AND ORDER. For the reasons discussed herein, Plaintiff-Intervenors' motion is GRANTED as to their Title VII claims, but DENIED as to their NYHRL claims. Plaintiff-Intervenors shall file their Proposed Complaint in Intervention, amended i n accordance with this Order, within 10 days of the date of this Order. The Clerk of Court is directed to terminate Docket Entry 36. re: 36 MOTION to Intervene filed by May Menawi, Nicole Haywood, HATTIE HAYNES. (Signed by Judge Katherine Polk Failla on 9/30/2013) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
EQUAL EMPLOYMENT OPPORTUNITY :
COMISSION,
:
:
:
Plaintiff,
v.
:
:
MAVIS DISCOUNT TIRE, et al.,
:
:
Defendants. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED:______________
09/30/2013

12 Civ. 0741 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
On January 31, 2012, the Equal Employment Opportunity Commission
(“EEOC”) initiated this action, alleging that Defendants Mavis Discount Tire, Inc.
d/b/a Mavis Tire Supply Corp. (“Mavis”), Mavis Tire NY, Inc., and Cole Muffler, Inc.
(collectively, “Defendants”), failed to correct unlawful employment practices on the
basis of sex in violation of Title VII of the Civil Rights Act of 1964, and Title I of the
Civil Rights Act of 1991. Plaintiff-Intervenors Nicole Haywood, May Menawi, and
Hattie Haynes now seek leave to intervene in the action and bring claims under
Title VII and the New York Human Rights Law, N.Y. Exec. Law § 296 (“NYHRL”).
For the reasons set forth in the remainder of this Opinion, the motion is granted in
part and denied in part.

FACTUAL BACKGROUND
A.

Facts Giving Rise to this Action
The following facts are either taken from the Complaint (“Compl.” (Dkt. #1)),

or the Proposed Complaint in Intervention (“Prop. Compl.” (Pl. Aff. Ex. A (Dkt.
#15))), and are assumed to be true for the purposes of this motion.
1.

Nicole Haywood

Plaintiff-Intervenor Nicole Haywood applied for the position of assistant
manager with Defendants three times during the spring and fall of 2008, and was
qualified for the position for which she applied. (Compl. ¶ 8(j); Prop. Compl. ¶¶ 3233). Haywood had extensive experience in the automotive industry, including 14
years working at Sears & Roebuck (“Sears”), during which time she had held the
position of Assistant Sales Manager and Technician, and had even assumed the
responsibilities of running the store at which she worked. (Compl. ¶ 8(j); Prop.
Compl. ¶¶ 34-35).
Haywood received no response from Defendants the first two times she
submitted her application. (Compl. ¶ 8(k); Prop. Compl. ¶ 37). In approximately
September 2008, Haywood informed Defendants’ Regional Training Manager that
she believed Defendants had refused to hire her because of her sex; one week later,
Haywood was granted an interview with Defendants’ Senior Vice-President of
Operations. (Compl. ¶ 8(m); Prop. Compl. ¶¶ 37-38). Even then, Haywood was not
hired. (Compl. ¶ 8(l); Prop. Compl. ¶ 38).
During the same time that Haywood submitted her applications to
Defendants, at least two females and three males who also worked at Sears — some
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of whom Haywood had trained herself — applied for field employee positions with
Defendants. (Compl. ¶ 8(m); Prop. Compl. ¶ 39). 1 Defendants did not hire the two
female applicants, but hired the three male applicants as either managers or
assistant managers, even though they were equally qualified to or less qualified
than Haywood. (Id.).
2.

May Menawi

Plaintiff-Intervenor May Menawi applied for a job with Defendants at some
time in 2008, and was qualified for the position for which she applied. (Prop.
Compl. ¶¶ 41-42). Menawi had worked in the automotive industry since 2002, and
had held sales and customer service positions at a number of automotive companies.
(Id. ¶ 44). Menawi was not interviewed or hired by Defendants. (Id. ¶¶ 45-46).
During the same time that Menawi submitted her application to Defendants,
several equally or less qualified male applicants with whom Menawi worked at
Sears were hired by Defendants. (Id. ¶ 46). On August 7, 2009, Menawi wrote a
letter that is attached to Haywood’s EEOC records; in it, Menawi recounted the
above facts and stated that “I believe that [Defendants] are discriminating against
female workers with[in the] Auto[mo]tive Department.” (Pl. Aff. Ex. B).
3.

Hattie Haynes

Plaintiff-Intervenor Hattie Haynes applied for a job with Defendants in or
about 2007, and was qualified for the position for which she applied. (Prop. Compl.
¶¶ 48-49). Haynes had worked at Sears for more than 11 years as an Automotive

1

In this action, “field employees” are defined as manager, assistant manager, mechanic and
tire installer. (Compl. ¶ 8(c)).

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Sales Associate, and won several awards in this capacity. (Id. ¶ 50). During the
same time that Haynes submitted her application to Defendants, several equally or
less qualified male applicants with whom Haynes had worked at Sears were hired
by Defendants. (Id. ¶ 52). Defendants did not, however, hire Haynes. (Id.).
B.

The EEOC Action
Haywood filed a charge of discrimination with the EEOC in January 2009,

alleging Title VII violations by Mavis. (Compl. ¶ 6; Pl. Aff. Ex. B). During the
EEOC proceeding, Defendants disclosed that out of their 800 field employees
working in approximately 110 branch stores, only one was female, and she had been
hired in 1990. (Compl. ¶ 8(e); Prop. Compl. ¶ 27). From 2008 to 2011, Defendants
hired nearly 1,300 field employees, but not one of them was female, despite the fact
that many qualified female applicants applied. (Compl. ¶ 8(f); Prop. Compl. ¶ 28).
The EEOC found that many of the male applicants Defendants hired were equally
qualified to or less qualified than the female applicants who were not hired.
(Compl. ¶ 8(g); Prop. Compl. ¶ 30). Some male applicants even submitted blank
applications. (Compl. ¶ 8(g)).
On August 5, 2011, the EEOC issued a determination that there was
reasonable cause to believe Defendants had violated Title VII by failing to hire
Haywood and a class of females because of their sex. (Prop. Compl. ¶ 15; Pl. Aff.
Ex. C). Also on August 5, 2011, the EEOC issued a proposed Conciliation
Agreement, into which the parties declined to enter. (Prop. Compl. ¶ 16). The
EEOC did not issue a Notice of Right to Sue to Haywood “in light of the filing of the
EEOC Complaint.” (Prop. Compl. ¶ 18).
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C.

The Instant Litigation
EEOC brought this action on January 31, 2012. (Dkt. #1). Defendants filed

an answer on April 1, 2012. (Dkt. #7). The parties then attended an April 2, 2012
conference before the Honorable John G. Koeltl, the District Judge to whom the case
was then assigned. As of that date, the EEOC and Defendants had engaged in
discussions as to the case management plan, the scope of and schedule for
discovery, and the potential for a bifurcated trial on the EEOC’s pattern and
practice claim. (Def. Opp. 2; see Dkt. #4, 8, 33).
On April 25, 2012, Plaintiff-Intervenors filed the instant motion (Dkt. #13),
and Defendants filed their opposition on May 10, 2012 (Dkt. #21). However, both
parties encountered a filing error, with the Court’s ECF system noting that each
party had selected a “wrong event type from menu” that yielded a “deficient docket
entry.” As a result, neither the motion nor its opposition was properly filed.
Neither side realized their error, however, and both continued to believe that their
motions were pending before Judge Koeltl.
The parties proceeded with discovery as to “Phase I,” i.e., the EEOC’s pattern
and practice claim. (See Dkt. #33). After this matter was reassigned to the
undersigned on June 27, 2013 (Dkt. #30), the parties submitted a status letter (Dkt.
#33), in response to the Court’s July 2, 2013 Order (Dkt. #32). In the status letter,
the parties advised the Court of their belief that the April 25, 2012 Motion to
Intervene was fully submitted and still pending before the Court. (Dkt. #33).
In order to resolve this issue, the Court held a telephone conference on July
17, 2013, during which it notified the parties that the motion had not been properly
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filed. Upon learning that the parties still intended to file the motion, the Court
instructed both parties to properly file their respective submissions on ECF.
Although this presents an unusual procedural posture, neither party has objected to
treating the motion as if it was filed on April 25, 2012, and fully submitted on May
10, 2012. The Court sees no reason to penalize the parties for their mutual
technical error. The motion will be treated as if it had been properly filed and fully
submitted as of May 2012.
DISCUSSION
A.

Applicable Law
Plaintiff-Intervenors argue that they should be allowed to intervene as a

matter of right under Fed. R. Civ. P. 24(a)(1) and the “single filing rule.” Rule 24(a)
provides that “[o]n timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by federal statute; or (2) claims an
interest related to the property or transaction that is the subject of the action, and
is so situated that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a). Title VII confers a right
to intervene upon a person who files a charge of discrimination that forms the basis
for an EEOC enforcement action. 42 U.S.C. § 2000(e)-5(f)(1); see also EEOC v.
Reckrem, 199 F.R.D. 526, 529 (S.D.N.Y. 2001). There is no dispute that Haywood
has a right to intervene in this action to assert a Title VII claim (see Def. Opp. 4);
instead, the parties disagree as to whether Menawi and Haynes may also intervene
under the “single filing rule.”
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The “single filing” or “piggybacking” rule was adopted by the Second Circuit
in Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986). In that case, the Court
held that “where one plaintiff has filed a timely EEOC complaint, other non-filing
plaintiffs may join in the action if their individual claims aris[e] out of similar
discriminatory treatment in the same time frame.” 782 F.2d at 1100 (internal
quotation marks omitted). “[M]ere similarity” between the timely filed charge and
the subsequent plaintiff’s claims “within the same general time frame suffices to
permit [application of] the single-filing rule.” Tolliver v. Xerox Corp., 918 F.2d 1052,
1057 (2d Cir. 1990) (internal quotation marks omitted). “In cases such as this,
when the allegedly discriminatory activity affects a large group, piggybacking is not
allowed unless the filed charge provides some indication that the grievance affects a
group of individuals defined broadly enough to include those who seek to piggyback
on the claim.” Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 564 (2d Cir. 2006)
(internal quotation marks omitted) (citing Tolliver, 918 F.2d at 1058).
As an initial matter, the Court must consider the timeliness of the motion to
intervene. Timeliness should be “evaluated against the totality of the
circumstances before the court.” Farmland Dairies v. Comm’r of the N.Y. State
Dep’t of Agric. and Markets, 847 F.2d 1038, 1044 (2d Cir. 1988) (citing NAACP v.
New York, 413 U.S. 345, 366 (1973)). The intervention was timely, because when it
was filed in April 2012, the action was less than three months old, discovery had not
yet begun, and Defendants had only recently filed their answer. See Arista Records,
Inc. v. Dalaba Color Copy Ctr., Inc., No. 05 Civ. 3634 (DLI) (MDG), 2007 WL 749737
(E.D.N.Y. Mar. 7, 2007) (finding that intervention was timely where the motion was
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filed five months after the complaint); Am. S.S. Owners Mut. Protection and Indem.
Ass’n, Inc., v. Alcoa S.S. Co., No. 04 Civ. 4309 (LAK), 2005 AMC 1498 (S.D.N.Y.
Feb. 22, 2005) (finding that intervention was timely where the motion was filed a
few months after the complaint).
B.

Application
1.

Plaintiff-Intervenors Menawi and Haynes May Bring
Title VII Claims

Plaintiff-Intervenors Menawi and Haynes may intervene as a matter of right
by piggybacking onto Haywood’s charge of discrimination because their claims
“aris[e] out of similar discriminatory treatment in the same time frame.” Snell, 782
F.2d at 1100.
Menawi’s and Haynes’s claims share numerous factual similarities to
Haywood’s charge of discrimination, including the facts that (i) all three women
applied for positions at Defendants between 2007 and 2008; (ii) none of the three
was hired, despite their qualifications and years of experience in the automotive
industry; and (iii) equally or less qualified male applicants, with whom all three
women had worked at Sears, were hired by Defendants during the period in which
the three women filed their employment applications. (Pl. Br. 4).
Defendants argue in response that Menawi’s and Hayes’s claims are not
sufficiently similar because they did not apply to Defendants during the exact same
time frame in 2008 as Haywood, and because Menawi and Hayes have not alleged
facts regarding which location they applied to, or for what position. (Def. Opp. 3-5).
First, “[e]xact duplication of a time frame is unnecessary to satisfy the single-filing
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rule; instead, mere similarity of grievances within the same general time frame
suffices to permit operation of the single filing rule.” Cronas v. Willis Grp. Holdings
Ltd., No. 06 Civ. 15295 (GEL), 2007 WL 2739769, at *8 (S.D.N.Y. Sept. 17, 2007)
(emphasis in original) (citing Tolliver, 918 F.2d at 1058); see also Alemendral v. N.Y.
State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984) (finding that the
district court erred in refusing to consider discriminatory conduct that occurred
after plaintiff filed her EEOC complaint, as “a court may consider, in addition to the
original EEOC charges, those claims reasonably related to the EEOC charge.”).
Second, EEOC actions may be maintained against multiple business locations, even
though the charge of discrimination was limited to a single location. Rahman v.
Smith & Wollensky Rest. Grp., Inc., No. 06 Civ. 6198 (LAK) (JCF), 2008 WL 161230,
at *4 (S.D.N.Y. Jan. 16, 2008); (citing Tolliver, 918 F.2d at 1058-59 (permitting class
claims relating to various locations where EEOC charge had referenced related
company-wide class action) and Bethea v. Equinox Fitness Club, No. 07 Civ. 2018
(JSR) 2007 WL 1821103, at *2, 4 (permitting class claims covering multiple venues
where, although plaintiff’s claims arose in only one, his EEOC charge alleged
similar conditions in other locations)).
Even without alleging the locations to which or the positions for which
Menawi and Haynes applied, their claims are sufficiently similar to Haywood’s
because “the conduct complained of would fall within the scope of the EEOC
investigation which can reasonably be expected to grow out of [Haywood’s] charge of
discrimination.” Velez v. Novartis Pharms. Corp., 244 F.R.D. 243, 255 (S.D.N.Y.
2007) (internal quotation marks omitted) (quoting Holtz v. Rockefeller & Co., 258
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F.3d 62, 83 (2d Cir. 2001)). “The Second Circuit has described this principle as
essentially an allowance of loose pleading.” Cronas, 2007 WL 2739769, at *6
(internal citation and quotation marks omitted) (citing Holtz, 258 F.3d at 83).
Menawi’s and Haynes’s claims are virtually identical to Haywood’s and, as such,
would fall within the scope of the EEOC’s investigation and could reasonably be
expected to grow out of Haywood’s original charge of discrimination.
Defendants lastly argue that Menawi’s and Haynes’s Title VII claims are
untimely, and should not be permitted. (Def. Opp. 5-6). Notably, however, Title
VII’s administrative prerequisites “must be interpreted liberally to effectuate its
purpose of eradicating employment discrimination.” Cronas, 2007 WL 2739769, at
*2 (S.D.N.Y. Sept. 17, 2007) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
397 (1982) and Love v. Pullman Co., 404 U.S. 522, 526-27 (1972) (noting that
fairness, and not excessive technicality, should guide consideration of Title VII
actions)). The “single filing rule” addresses this very issue. Under that rule, the
timeliness of Menawi’s and Haynes’s claims is not judged against the date of the
parties’ intervention, but rather is judge by evaluating the claims to see whether
they are sufficiently similar to, and arise out of the same general time period as, the
facts giving rise to Haywood’s claims. See generally Tolliver, 918 F.2d at 1058-59.
They are. Accordingly, Menawi and Haynes may intervene to bring Title VII claims
in this action.

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2.

The Court Declines to Exercise Jurisdiction over PlaintiffIntervenors’ State Law Claims

Haywood, Menawi, and Haynes also seek to bring claims under the NYHRL,
N.Y. Exec. Law § 296. When a district court has original jurisdiction in a civil
action under 28 U.S.C. § 1367, it also “shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” 28 U.S.C. § 1367(a). “Claims are part of the same
case or controversy if they derive from a common nucleus of operative fact,” which
they clearly do here. William A. Gross Const. Associates, Inc. v. Am. Manufacturers
Mut. Ins. Co., No. 07 Civ. 10639 (LAK) (AJP), 2009 WL 427280, at *14 (S.D.N.Y.
Feb. 23, 2009) (citing Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328,
335 (2d Cir. 2006) and State St. House, Inc. v. New York State Urban Dev. Corp., 75
Fed. Appx. 807, 811-12 (2d Cir. 2003)). The Second Circuit has repeatedly held that
“claims brought under New York State’s Human Rights Law are analytically
identical to claims brought under Title VII.” Torres v. Pisano, 116 F.3d 625, 629 &
n.1 (2d Cir. 1997) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 71415 & n.6 (2d Cir. 1996)).
However, pendent jurisdiction “need not be exercised in every case,”
inasmuch as it is a “doctrine of discretion, not of plaintiff’s right.” United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966). The Court must weigh considerations of
“economy, convenience [and] fairness,” In re Methyl Tertiary Butyl Ether (“MTBE”)
Products Liability Litigation, 510 F. Supp. 2d 299, 329-30 & n.137 (S.D.N.Y. 2007)
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(citing City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)), and
jurisdiction should be refused where, for example, there are “reasons independent of
jurisdictional considerations, such as the likelihood of jury confusion in treating
divergent legal theories of relief, that would justify separating state and federal
claims for trial.” Gibbs, 383 U.S. at 726 (citing Fed. R. Civ. P. 42(b)).
Under the NYHRL, “the doctrine of respondeat superior, or vicarious liability
based on the agency relationship, is not available in cases involving discrimination.”
Melendez v. Int’l Serv. Sys., Inc., No. 97 Civ. 8051 (DAB), 1999 WL 187071, at *15
(S.D.N.Y. Apr. 6, 1999) (citing Father Belle Comm. Ctr. v. New York State Div. of
Human Rights, 642 N.Y.S.2d 739, 746 (App. Div. 4th Dep’t 1996)). To prevail on
this claim, Plaintiffs would bear the additional burden of “demonstrat[ing] that the
employer acquiesced in the discriminatory conduct or subsequently condoned it.”
Id. Title VII does not require this additional showing, but the Supreme Court has
held, somewhat relatedly, that “absence of notice to an employer does not
necessarily insulate that employer from liability.” Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 69 (1986) (citing Restatement (Second) of Agency §§ 219-237
(1958)).
The EEOC and Defendants already intend to proceed with a bifurcated trial.
Defendants argue that introducing Plaintiffs’ state law claims, with NYHRL’s
additional burden of proof, would be “unworkable” at trial, and poses significant
potential to confuse a jury. (Def. Opp. 6-9). Moreover, Defendants argue that
Plaintiffs’ state law claims are untimely under New York State’s three-year statute
of limitations. (Id.). The Court need not reach the latter issue, however, because it
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agrees that the significant potential for jury confusion weighs against exercising
supplemental jurisdiction over Plaintiff-Intervenors’ state law claims. See also
Alveari v. American Int’l Group, Inc., 590 F. Supp. 228, 232 (S.D.N.Y.
1984) (refusing to retain jurisdiction over state claim because such retention would
“inevitably add to the proof in this case and complicate what can be a simple,
straightforward non-jury case”); see also Burger v. Health Ins. Plan, 684 F. Supp.
46, 50-51 (S.D.N.Y. 1988) (holding that potential for jury confusion was one reason
for dismissing state claim); Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569,
571 (W.D.N.Y. 1987) (declining to exercise jurisdiction where differing standards
under Title VII and NYHRL would result in jury confusion, and other state law
issues could predominate at trial); but see Song v. Ives Laboratories, Inc., a Div. of
American Home Products Corp., 735 F. Supp. 550, 554-55 (S.D.N.Y. 1990)
(exercising pendent jurisdiction where state law was well-settled, there was no
indication that state issues would predominate, and there was “no reason to believe
that jury confusion [was] likely to occur”).

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CONCLUSION
For the reasons discussed herein, Plaintiff-Intervenors’ motion is GRANTED
as to their Title VII claims, but DENIED as to their NYHRL claims. PlaintiffIntervenors shall file their Proposed Complaint in Intervention, amended in
accordance with this Order, within 10 days of the date of this Order. The Clerk of
Court is directed to terminate Docket Entry 36.
SO ORDERED.
Dated: September 30, 2013
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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