Sandoval v. American Bldg. Maintenance Industries

Citation578 F.3d 787
Decision Date26 August 2009
Docket NumberNo. 08-2271.,08-2271.
PartiesFrancisca SANDOVAL; Ines Hernandez; Miriam Pacheco; Eva Reyes; Arminda Gomez; Nidia Guerrero; Lucila Marquez; Maria Perez; Azucena Garcia; Estela Laureano; Marlene Giron, Plaintiffs-Appellants, v. AMERICAN BUILDING MAINTENANCE INDUSTRIES, INC., also known as ABM Industries, Incorporated, doing business as ABM Janitorial Services; American Building Maintenance Co. of Kentucky, Defendants-Appellees. Equal Employment Opportunity Commission; National Employment Lawyers Association, Amici on behalf of Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Justin D. Cummins, argued, Brendan D. Cummins, Kelly A. Jeanetta, M. William O'Brien, Miller & O'Brien, on the brief, Minneapolis, MN, for Plaintiffs-Appellants.

Robert R. Reinhart, Jr., argued, Joel O'Malley, Dorsey & Whitney, on the brief, Minneapolis, MN, for Defendants-Appellees.

Dori Kay Bernstein, Equal Employment Opportunity Commission Office of General Counsel, Washington, DC, Stefano G. Moscato, National Employment Lawyers Association, San Francisco, CA, Joyce E. Smithey, Rifkin & Livingston, Annapolis, MD, Amici on behalf of Appellants.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Francisca Sandoval, Ines Hernandez, Miriam Pacheco, Eva Reyes, Arminda Gomez, Nidia Guerrero, Lucila Marquez, Maria Perez, Azucena Garcia, Estela Laureano, and Marlene Giron (collectively "Appellants" or "Plaintiffs"), brought suit against American Building Maintenance Industries, Inc. (ABMI), d/b/a ABM Janitorial Services, and American Building Maintenance of Kentucky (ABMK)1 under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, and the Minnesota Human Rights Act (MHRA), Minn.Stat. Ann. §§ 363A.01 to 363A.41, alleging sexual harassment, hostile workplace, and other employment-related claims. The district court dismissed the claims brought by eight of the appellants (Sandoval, Hernandez, Pachecho, Reyes, Gomez, Guerrero, Marquez, Perez (collectively "Original Plaintiffs")) against ABMK, holding the claims were brought more than ninety days after the Equal Employment Opportunity Commission (EEOC) issued right-to-sue letters.2 Thereafter, ABMI moved for summary judgment, arguing it was not the appellants' employer, and ABMK moved for summary judgment, arguing the claims brought against it by the timely plaintiffs should be dismissed on the merits. The district court granted ABMI's motion, holding it was not appellants' employer. Additionally, the district court granted summary judgment to ABMK, holding the timely plaintiffs failed to allege actionable claims for sexual harassment, hostile workplace or other employment-related claims under Title VII or the MHRA. On appeal, appellants argue the district court erred in 1) finding the amended complaint was untimely or did not relate back to the original complaint, 2) finding ABMI was not the appellants' employer by acting as an integrated enterprise with ABMK, and 3) dismissing the timely plaintiffs' claims of sexual harassment hostile workplace, and other employment-related claims on the merits. We reverse in part and remand.

I

On May 2, 2006, the original plaintiffs, who had filed EEOC claims of discrimination against ABMI, requested right-to-sue letters from the EEOC. By May 11, 2006, the EEOC had issued the letters and informed the original plaintiffs any action must be filed within ninety days of receiving the letters. On May 15, 2006, the original plaintiffs filed suit against ABMI, a/k/a ABM Industries Incorporated, d/b/a ABM Janitorial Services. The complaint did not name ABMK. On June 28, 2006, defense counsel called the appellants' attorney and informed him ABMK was the appellants' employer, not ABMI. Appellants' counsel requested verification of the information and researched ABMK's status as an employer in Minnesota. On June 29, 2006, defense counsel wrote appellants' counsel verifying that ABMK was the appellants' employer and offered a stipulation allowing appellants to amend the complaint to add ABMK. Appellants' counsel requested further verification and declined the stipulation.

On July 28, 2006, appellants' counsel sent a proposed stipulation to defense counsel regarding amending the complaint to add ABMK as a defendant. Defense counsel agreed to the stipulation in principle but requested additional language indicating the amendment did not relate back to the date of the original complaint. On August 9, 2006, appellants' counsel agreed to the additional language but the stipulation was not signed. On August 11, 2006, appellants' counsel informed defense counsel he intended to add three additional plaintiffs and would wait until they received right-to-sue letters from the EEOC before amending the complaint. Defense counsel indicated the amendment naming ABMK should be made immediately. Appellants' counsel refused, preferring instead to make both amendments at the same time. On September 15, 2006, more than one month after the ninety-day time limit had passed as to the original plaintiffs, the amended complaint adding ABMK and the three timely plaintiffs was filed.

ABMK moved for dismissal, arguing the amendment was untimely. The original plaintiffs resisted, arguing equitable tolling or the relation back doctrine saved the untimely amendment. The district court disagreed, finding the original plaintiffs had not acted reasonably or in good faith in failing to amend the complaint sooner. In particular, the court found appellants' counsel was informed early on of the identity of the appellants' employer and was offered multiple opportunities to amend the complaint. Despite this information, counsel unreasonably delayed in filing the amendment. Similarly, the district court concluded the relation back doctrine did not apply because the failure to name ABMK was not the result of a mistake as to its identity. Instead, the district court concluded appellants' counsel was informed ABMK was the proper party nearly two months before the statute of limitations expired and failed to make a timely motion to amend.

Thereafter, ABMI and ABMK moved for summary judgment on the discrimination, hostile workplace, and other employment-related claims. ABMI argued it was not the appellants' employer and the claims against it should be dismissed. ABMK argued the claims filed by the timely plaintiffs should be dismissed because there was no evidence of sexual harassment, hostile workplace or other employment-related misconduct. The district court concluded there was insufficient evidence to show ABMI exercised sufficient control over ABMK to make it the appellants' employer. The court further found there was insufficient evidence to support the timely filed sexual harassment, hostile workplace and other employment-related claims. Accordingly, the district court granted summary judgment and dismissed all the claims.

On appeal, the appellants argue the district court erred in finding the amended complaint untimely under either equitable tolling or the relation back doctrine. Additionally, the appellants argue the court erred in finding ABMI was not their employer, and that the sexual harassment, hostile workplace, and other employment-related claims lacked merit.

II

We review the district court's grant of summary judgment de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to the appellants, the nonmoving parties. Holland v. Sam's Club, 487 F.3d 641, 643 (8th Cir.2007). We will affirm if no genuine issue of material fact exists and the defendants are entitled to judgment as a matter of law. Id. But "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A

The original plaintiffs first argue the district court erred in concluding neither equitable tolling or the relation back doctrine saved the untimely filed amendment. Equitable tolling requires, among other elements, a finding the original plaintiffs acted reasonably and in good faith. Pecoraro v. Diocese of Rapid City, 435 F.3d 870, 875 (8th Cir.2006). The failure to bring a timely claim is reasonable if "despite all due diligence, [the original plaintiffs were] unable to obtain vital information bearing on the existence of [the] claim." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir.1995) (citations omitted). Here the original plaintiffs did not act with due diligence. Defense counsel informed appellants' counsel he needed to amend the complaint to include ABMK, and offered multiple opportunities to amend. Nevertheless, counsel waited nearly three months until the ninety-day time limit was past to file the amendment. We conclude the delay was not reasonable.

Similarly, under the relation back doctrine, the original plaintiffs must show the failure to name ABMK was the result of a mistake concerning the identity of the proper party. Shea v. Esensten, 208 F.3d 712, 720 (8th Cir.2000). The original plaintiffs argue ABMK was on notice it should have been named in the complaint and was not prejudiced by the delay. It is true ABMK was on notice. Further, ABMK does not argue it was prejudiced. The original plaintiffs, however, offer no explanation for waiting until after the statute of limitations expired before filing the amended complaint. Inasmuch as the original plaintiffs were aware of ABMK's identity for nearly two months before the statute expired, it cannot be argued a mistake caused the failure to file a timely complaint against ABMK. Rather, the complaint was not filed because counsel preferred to wait and file the amendment adding ABMK at the same time he sought to add the timely plaintiffs. Therefore, we affirm the district court's order holding the amendment adding ABMK was untimely.

B

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