Equal Employment Opportunity Comm'n v. Jbs U.S. Llc

• Decision Date: 09 June 2011
• Docket Number: Civil Action No. 10–cv–02103–PAB–KLM.
• Citation: 794 F.Supp.2d 1188
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,andIraq Abade, et al., Plaintiffs–Intervenors,andMaryan Abdulle, et al., Plaintiffs–Intervenors,v.JBS USA, LLC, d/b/a JBS Swift & Company, Defendant.
• Court: U.S. District Court — District of Colorado

794 F.Supp.2d 1188

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,andIraq Abade, et al., Plaintiffs–Intervenors,andMaryan Abdulle, et al., Plaintiffs–Intervenors,
v.
JBS USA, LLC, d/b/a JBS Swift & Company, Defendant.

Civil Action No. 10–cv–02103–PAB–KLM.

United States District Court, D. Colorado.

June 9, 2011.

[794 F.Supp.2d 1192]

David Andrew Winston, Iris Halpern, Stephanie Struble, William Earl Moench, U.S. Equal Employment Opportunity Commission, Denver, CO, for Plaintiff.Ashley McCall Kelliher, Diane Smith King, King & Greisen, LLP, Rajasimha Raghunath, Rhonda Cheryl Brownstein, University of Denver–Sturm College of Law, Denver, CO, for Plaintiffs–Intervenors.Heather Fox Vickles, Walter Vernon Siebert, Sherman & Howard, L.L.C., Denver, CO, Raymond Myles Deeny, Sherman & Howard, L.L.C., Colorado Springs, CO, for Defendant.ORDER ON MOTIONS TO DISMISS PHILIP A. BRIMMER, District Judge.

This case involves allegations of national origin, religious, and ethnic discrimination at a meat packing plant in Greeley, Colorado owned and operated by JBS USA, LLC (“JBS”). It is before the Court on defendant's motions to dismiss [Docket Nos. 12, 52 and 64] the Equal Employment Opportunity Commission's (“EEOC”) complaint [Docket No. 1] and two complaints in intervention [Docket Nos. 61, 40]. The motions are fully briefed and ripe for disposition. Jurisdiction over this case is premised upon plaintiffs' invocation of federal questions pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

On August 30, 2010, the EEOC filed a complaint [Docket No. 1] against defendant alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981 a. On November 2, 2010, Iraq Abade and approximately 103 other employees or former employees of defendant (collectively “the Abade intervenors”) filed a complaint in intervention

[794 F.Supp.2d 1193]

[Docket No. 17], which was later amended [Docket No. 61]. On November 29, 2010, Maryan Abdulle and five others (collectively “the Abdulle intervenors”) also filed a complaint in intervention [Docket No. 40]. The EEOC, the Abade intervenors, and the Abdulle intervenors assert similar claims. Each brings a claim for pattern and practice of discriminatory treatment, failure to accommodate religion, retaliation for requesting religious accommodation, hostile work environment, and discriminatory discipline and discharge. The intervenors also bring claims for retaliation for engaging in protected activity, discriminatory treatment because of race, hostile work environment/harassment because of race, and discriminatory discipline and discharge because of race. All of these claims arise out of allegations of employees' treatment at defendant's plant in Greeley, Colorado.

Plaintiffs allege that defendant harassed black Somali Muslim employees and denied them the ability to pray as required by their religion. Employees at defendant's Greeley plant are exclusively represented by United Food and Commercial Workers Local # 7 (“the Union”). According to the complaints, although Muslims are required by their religion to pray five times a day, Muslim employees at the plant were denied requests to pray during their bathroom breaks and were harassed when they attempted to pray during scheduled breaks. These employees were subject to harassing comments based on their race, national origin and/or religion, and managers and other employees regularly threw blood, meat, and bones at them. The plant's restrooms bore anti-black, anti-Somali, and anti-Muslim graffiti and these employees were subject to offensive comments regarding their race, national origin, and/or religion. This group of employees was disciplined more than other employees and, when they complained about this discrimination, defendant did not correct the hostile work environment.

The complaints also allege that tensions with black Somali Muslim employees at the plant came to a head in 2008 during Ramadan, a Muslim holy month during which Muslims fast. A large group of Muslim employees came to the office of the plant's superintendent to request that their meal break be moved from 9:15 p.m. to 7:30 p.m. These employees wanted the change in order to break their fast within fifteen minutes of sunset, as required by their religion. Plant management allowed Muslim employees to break at 7:30 p.m., fifteen minutes after sunset, for two shifts on September 3 and 4, 2008.

On September 5, 2008, management allegedly moved the break to 8:00 p.m. At 7:30 p.m. on September 5, 2008, management stood at all of the exits and blocked Muslim employees from leaving. Defendant also shut off the water fountains at the plant or marked them with red tags (usually used to mark spoiled meat), preventing Muslim employees from taking a drink of water after their day of fasting or washing up as required before their prayers. At 8:00 p.m., management allowed the Muslim employees to take their break and ordered them outside the facility. When the employees attempted to re-enter after their break, they were told they could not return to work. On Monday, September 8, 2008, defendant informed the Union that employees who left the plant on Friday evening had engaged in an “unauthorized work stoppage” and would be placed on an indefinite suspension. On September 9, 2008, defendant decided to allow employees who left the facility to return to work with a final written warning, provided they returned to work that day. But it did not contact each of the employees to tell them they were required to return that day and subsequently terminated

[794 F.Supp.2d 1194]

all of the Muslim employees who did not return to work on Tuesday, September 9, 2008.II. ANALYSIS

Defendant seeks the dismissal of all three operative complaints. It argues that the entire case should be dismissed for failure to join the Union, a necessary party. It also argues that the EEOC's complaint should be dismissed because the EEOC failed to conciliate with defendant in good faith. Finally, it argues that each group of intervenors has failed to administratively exhaust its claims and, thus, their complaints should be dismissed as well.

A. Failure to Join the Union1. Standard of Review

Federal Rule of Civil Procedure 12(b)(7) allows for dismissal for failure to join a person under Rule 19. Rule 19 requires a two step analysis before dismissing a claim for failure to join an indispensable person. See Davis v. United States, 343 F.3d 1282, 1288 (10th Cir.2003). First, the court must determine whether the absent person is “necessary” or, under the language in the newly revised Rule 19, “required.” See id.; Fed.R.Civ.P. 19(a).¹ A person is “required” to be joined under Rule 19 if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Fed.R.Civ.P. 19(a)(1). A required person must be joined as a party if joinder is feasible. Id. If a required person cannot be joined, the court moves to the second step, determining “whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Fed.R.Civ.P. 19(b). In deciding whether to proceed without the required person, the court should consider:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures;

(3) whether a judgment rendered in the person's absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Fed.R.Civ.P. 19(b). The party seeking dismissal for failure to join bears the burden of persuasion. Lenon v. St. Pa'ul Mercury Ins. Co., 136 F.3d 1365, 1372 (10th Cir.1998).2. Analysis

Defendant argues that all three complaints should be dismissed because none of the plaintiffs have joined the Union as a party. Dismissal for failure to join requires the Court to find (1) that the Union

[794 F.Supp.2d 1195]

is a required party under Federal Rule of Civil Procedure 19(a), (2) that joinder of the Union is infeasible, and (3) that dismissal is appropriate. The Court will address each step of this analysis in turn.

Defendant advances a series of arguments for why the Union is a required person, which all focus on the nature of the plaintiffs' requested relief. The relief plaintiffs seek are varieties of equitable relief, including an injunction prohibiting defendant from engaging in discrimination; an order requiring defendant to implement policies accommodating Somali and Muslim employees; and backpay and reinstatement and/or front pay for terminated employees. Plaintiffs additionally seek compensatory relief and punitive damages. Defendant first argues that this relief cannot be afforded absent the Union, thereby making the Union a required party under Rule 19(a)(1)(A), and second, that affording this relief will subject defendant to inconsistent obligations, thereby making the Union a required party under Rule 19(a)(1)(B)(ii).

The Court finds that it can accord the relief plaintiffs seek even in the Union's absence and, therefore, the Union is not required under Rule 19(a)(1)(A). Plaintiffs have not alleged any wrongdoing by the Union. See Potter v. Continental Trailways, Inc., 480 F.Supp. 207, 213 (D.Colo.1979) (finding unions not required under Rule 19 where plaintiff did not allege any violations by the union or seek relief against the...