Equal Employment Opportunity Commission v. Frontier Hot-Dip Galvanizing, Inc.

Filing 50

DECISION AND ORDER adopting Report and Recommendations re 27 Report and Recommendations.; granting 13 Motion to Strike ; granting 20 Motion for Judgment on the Pleadings; denying 25 Motion to Amend or Correct - all consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 5/22/19. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
16-CV-691
Plaintiff,
V.

DECISION
AND ORDER

FRONTIER HOT-DIP GALVANIZING, INC.
Defendant/Third Party Plaintiff,
V.
COASTAL STAFFING SERVICES OF NEW YORK,
Third Party Defendant,
__________________________________
This

matter

is

before

the

Court

upon

the

Report

and

Recommendation (“the R&R”) dated December 18, 2017 issued by
Magistrate

Judge

H.

Kenneth

Schroeder,

Jr.

This

case

was

transferred to the undersigned, the Honorable Michael A. Telesca by
Order dated May 20, 2019.

For the reasons discussed herein, the

Court adopts the R&R in full.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The

Equal

Employment

Opportunity

Commission

(“the

EEOC”)

commenced this action pursuant to Title VII of the civil Rights
Act,

42.

U.S.C.

§

2000e

et

seq.,

against

Frontier

Hot-Drip

Galvanizing, Inc. (“Frontier”) on behalf of two black employees
along with others similarly aggrieved who were subjected to racial
and national origin discrimination and a hostile work environment.
The complaint alleges that the employees affected were subjected to
racial slurs uttered by co-workers and supervisors along with

racist

graffiti

which

remained

in

the

workplace

and

after

complaining about their work conditions to Frontier and the EEOC,
the employees were terminated.
Frontier

answered

the

(Dkt. No. 1)
complaint

generally

denying

the

allegations, alleging that the employees were terminated for just
cause

and

not

discrimination.

in

retaliation

for

their

complaints

of

Frontier asserted 25 affirmative defenses in its

answer. (Dkt. No. 8.)
Frontier also commenced a third-party action against Coastal
Staffing Services of New York (“Coastal Staffing”) alleging that
Coastal Staffing breached its contract to “continue to provide the
best quality services in providing staff to Frontier,” and engaged
in negligent conduct by failing to properly train and/or screen
staff to exclude individuals who would engage in
misconduct.

the alleged

Frontier’s third party complaint seeks contractual

indemnification, along with common law indemnification and damages
resulting from Coastal Staff’s breach of contract (Dkt. No. 9).
The essence of the agreement between Frontier and Coastal Staffing
states that Coastal Staffing would provide temporary employees to
Frontier for which, and if satisfactory, Frontier would pay Coastal
Staffing at a set rate.
letter

setting

forth

(Dkt. No. 9-3, p. 1) In a subsequent
increased

rates,

Coastal

expressed

appreciation to Frontier “for being a loyal and valued customer”
and assured Frontier that it would “continue to provide you with
the best quality service.”

(Dkt. No. 9-3, p. 2)

2

Frontier alleges that Coastal Staffing knew or should have
known that some or all of its employees placed at Frontier had a
history of engaging in inappropriate and/or unlawful discriminatory
harassment and were likely to engage in similar conduct while
working at Frontier.

(Dkt. No. 25-3 ¶ 20) Frontier’s proposed

amended complaint asserts two causes of action: (1) contribution
pursuant to Article 14 of New York’s Civil Practice Lw and Rules
based upon Coastal Staffing’s status as a joint employer with
Frontier.

(Dkt. No. 25-3, ¶¶ 23-30) and (2) breach of contract

based upon Coastal Staffing’s failure to adequately screen and
train

employees

assigned

to

work

at

Frontier’s

facility.

(Dkt. No. 25-3, ¶¶ 31-36)
DISCUSSION
Coastal Staffing argues that there is no contractual basis for
Frontier’s claims of indemnification and contribution and Frontier
cannot escape its own liability under Title VII by making such a
claim against Coastal Staffing.

(Dkt. No. 22)

Frontier withdrew its claims of indemnification

and moved to

amend the complaint to clarify its claim for contribution pursuant
to Article 14, of New York’s Civil Practice Law and Rules based
upon Coastal Staffing’s status as a joint employer and for breach
of contract based on Coastal Staffing’s failure to adequately
screen

employees

(Dkt. No.

25-1).

assigned

to

work

Coastal Staffing

at

Frontier’s

replies

facility.

arguing

that the

proposed amendments to the complaint are futile because Frontier

3

cannot rely upon State statute to pursue contribution for liability
imposed under a Federal statute.

(Dkt. No.

26, pp. 7-8)

The Magistrate Judge found that Frontier failed to allege any
agreement by Coastal Staffing to screen employees for history of
workplace discrimination and neither the fee agreement nor the
subsequent letter setting forth increased rates failed to provide
an unmistakable intent, that Coastal Staffing would indemnify,
contribute or otherwise incur liability for discrimination or
retaliation

at

Frontier’s

workplace.

The

correctly noted that “Where, as here, the

Magistrate

Judge

claim arises under a

federal statute, Federal law provides the rule of decision and
State laws regarding contribution or indemnity afford no recourse.”
(Dkt. No. 27, p. 8) Access 4All, Inc. v. Trump Int’l Hotel & Tower
Condo., No. 04-cv-7497, 2007 WL 633951, at *7 (S.D.N.Y. Feb. 26,
2007), citing Herman v. RSR Sec’y Servs. Ltd., 172 F.3d 132, 144
(2d Cir. 1999) (“federal courts recognize a right to contribution
under state law only in ‘cases in which state law supplie[s] the
appropriate rule of decision.’”), quoting Northwest, 451 U.S. at
97, n.38.
The Magistrate Judge appropriately recommended that Coastal
Staffing’s motion for judgment on the pleadings be granted and
Frontier’s motion to amend its complaint be denied as futile.
Motion to Strike Affirmative Defenses
The EEOC argued that Frontier’s affirmative defenses

are so

conclusory as to deny Plaintiff sufficient notice of their basis;
are not

affirmative

defenses

at

4

all;

and

are

either

legally

insufficient or inapplicable to Title VII claims.

(Dkt. No. 14)

Frontier argued that it would be unfair and prejudicial to require
it to include the factual basis for its affirmative defenses in its
answer when it has yet to obtain facts through discovery and,
alternatively, seeks leave to replead its affirmative defenses.
(Dkt. No. 19, p.12) In analyzing the authority presented by both
EEOC and by Defendant Frontier, the Magistrate Judge correctly
concluded

that

the

Defendant

has

failed

to

failed to

articulate
complete

which

administrative

procedures Plaintiff

before

bringing suit.

See EEOC v. United Parcel Serv., 15-cv-4141, 2017

WL 28295113, at *14 (E.D.N.Y. June 29, 2017) Accordingly, the
Magistrate Judge properly recommended that the second affirmative
defense be stricken without prejudice.
Statute of Limitations
The

third

affirmative

defense

asserts

the

statute

of

limitations. (Dkt. No. 8, p.16) The EEOC argued that it was not
subject to a limitation of time in which to bring a Title VII
action.

(Dkt. No. 14, p. 20)

Title VII “imposes no limitation upon the power of the EEOC to
file suit in federal court.”

United Parcel Ser., 2017 WL 2829513

at *13, quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355,
365-66 (1977).

Accordingly, the affirmative defense of statute of

limitations is stricken with prejudice.
Scope of Charge
The fourth affirmative defense asserted that the complaint
exceeds the scope of administrative charges of discrimination made

5

by the complaining employees.

(Dkt. No. 8, p. 16.)

The EEOC

properly argued, supported by relevant authority, that the content
of an individual employee’s charge does not limited the scope of
lawsuit brought by the EEOC in an enforcement capacity.
Magistrate

Judge

correctly

recommended

that

this

The

affirmative

defense be stricken with prejudice.
Respondeat Superior/Scope of Authority
The sixth affirmative defense asserted that Frontier is not
liable for the acts of its employees and that any unlawful acts
were committed by individuals acting outside the scope of their
authority.

(Dkt. No. 8, p. 16.)

The EEOC argued that Frontier is strictly liable for tangible
employment actions such as termination. (Dkt. No. 14, p. 23.) The
EEOC also complained that this affirmative defense fails to give it
sufficient notice as to the basis of the defense.
points

out,

it

is

unclear

whether

Frontier

is

As the R&R
alleging

the

affirmative defense based upon the limited information alleged, and
therefore, it is appropriate that the sixth affirmative defense be
stricken without prejudice.
Equitable Affirmative Defenses
The seventh affirmative defense asserts that the employees
represented by the EEOC are estopped from asserting their claims
and/or have waived their claims by reasons of their own actions.
(Dkt. No. 8, p.16.)

6

The twenty-fourth affirmative defense asserts laches and the
twenty-fifth affirmative defense assert unclean hands.

(Dkt.

No. 8, p.19.)
Upon application of the relevant case law, the Magistrate
Judge concluded that case law does not “stand for the sweeping
proposition that there is no set of facts pursuant to which an
equitable defense might be asserted against a governmental entity.”
United Parcel Serv., 160 F.Supp.3d at 641.

Accordingly, the Court

accepts the recommendation that the motion to strike the equitable
affirmative defenses be denied.
Good Faith Conciliation/Failure to Conciliate
The sixteenth affirmative defense claims that EEOC failed to
engage in a good faith conciliation and failed to provide Frontier
with information that would allow Frontier to investigate the
claims.

(Dkt. No. 8, p. 18.)

The eighteenth affirmative defense

asserts that EEOC failed to endeavor to eliminate the alleged
unlawful employment practice by informal methods of conference,
conciliation or persuasion, as required by 42 U.S.C. § 2000e-5(b).
(Dkt. No. 8, p.18.)

The R&R sets forth authority concerning this

issue. Although Federal Courts are empowered to review whether the
EEOC has fulfilled these pre-suit administrative obligations, such
review is limited to whether the EEOC afforded the employer an
opportunity to discuss and rectify a specified discriminatory
practice.
(2015).

Mach Mining, LLC v. EEOC, __ U.S.__ 135 S.Ct. 1645, 1656
The scope of judicial review is narrow to reflect “the

abundant discretion the law gives the EEOC to decide the kind and

7

extent of discussions appropriate in a given case.” Id.

The Court

adopts the Magistrate Judge’s conclusion in recommending that the
motion to dismiss these affirmative defenses be denied.
The record also reveals that Frontier withdrew its seventeenth
affirmative defense, Failure to Join Necessary Party, and the
Admissibility of Evidence in its twentieth affirmative defense
(Dkt. No. 19, p.11.)
CONCLUSION
For the foregoing reasons, and based on a detailed record and
proper analysis of the facts and the applicable law in the R&R, the
Court adopts the following recommendations: that the EEOC’s motion
to strike affirmative defenses (Dkt. No. 13) be granted without
prejudice as to the second and sixth affirmative defenses and with
prejudice as to the third and fourth affirmative defenses and as to
the seventeenth and twentieth affirmative defenses which Frontier
agreed to

withdraw

and

denied

with

respect

to

the eleventh,

sixteenth, eighteenth, twenty-fourth and twenty-fifth affirmative
defenses; Coastal Staffing’s motion for judgment on the pleadings
(Dkt. No. 20), be granted; and that Frontier’s motion to amend its
complaint (Dkt. No. 25), be denied as futile.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
__________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
May 22, 2019

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