Equal Emp't Opportunities Comm'n v. La Rana Haw., LLC, Civil No. 11–00799 LEK–BMK.

CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)
Writing for the CourtLESLIE E. KOBAYASHI
Citation888 F.Supp.2d 1019
PartiesEQUAL EMPLOYMENT OPPORTUNITIES COMMISSION, Plaintiff, v. LA RANA HAWAII, LLC d/b/a Senor Frog's and Altres, Inc., Doe 1–15, Inclusive, Defendants.
Docket NumberCivil No. 11–00799 LEK–BMK.
Decision Date22 August 2012

888 F.Supp.2d 1019

EQUAL EMPLOYMENT OPPORTUNITIES COMMISSION, Plaintiff,
v.
LA RANA HAWAII, LLC d/b/a Senor Frog's and Altres, Inc., Doe 1–15, Inclusive, Defendants.

Civil No. 11–00799 LEK–BMK.

United States District Court,
D. Hawai‘i.

Aug. 22, 2012.


[888 F.Supp.2d 1021]


Amrita Mallik, Anna Y. Park, Michael J. Farrell, U.S. Equal Employment Opportunity Commission Los Angeles, Los Angeles, CA, for Plaintiff.

Andrew L. Pepper, Bronster Hoshibata, Attorneys at Law, A Law Corporation, Barbara A. Petrus, Anne T. Horiuchi, Honolulu, HI, for Gerald L. Maatman, Jr., Chicago, IL, Laura J. Maechtlen, Seyfarth Shaw, Joshua M. Henderson, San Francisco, CA, for Defendants.


ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT ALTRES, INC.'S MOTION TO DISMISS COMPLAINT FILED DECEMBER 30, 2011 AND (2) GRANTING DEFENDANT LA RANA HAWAII, LLC'S MOTION TO DISMISS COMPLAINT FILED DECEMBER 30, 2011

LESLIE E. KOBAYASHI, District Judge.

Before the Court is Defendant ALTRES, Inc.'s (“ALTRES”) Motion to Dismiss Complaint Filed December 30, 2011 (“ALTRES Motion”), filed on March 15, 2012, [dkt. no. 14,] and Defendant La Rana Hawaii, LLC's (“La Rana”) Motion to Dismiss Complaint Filed December 30, 2011 (“La Rana Motion”), filed on April 26, 2012 [dkt. no. 30]. Plaintiff United States Equal Employment Opportunity Commission (“EEOC”) filed its memoranda in opposition on July 9, 2012, [dkt. nos. 41, 42,] and ALTRES and La Rana (collectively, “Defendants”) filed their respective replies on July 16, 2012 [dkt. nos. 45, 46]. These matters came on for hearing on July 30,

[888 F.Supp.2d 1022]

2012. Appearing on behalf of the EEOC were Michael J. Farrell, Esq., and Amrita Mallik, Esq.; appearing on behalf of La Rana were Barbara A. Petrus, Esq., and Anne T. Horiuchi, Esq.; and appearing on behalf of ALTRES were Andrew L. Pepper, Esq., and Laura J. Maechtlen, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the ALTRES Motion is HEREBY GRANTED IN PART AND DENIED IN PART and the La Rana Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND
I. The Complaint

The EEOC's Complaint against Defendants alleges violations of Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title I of the Civil Rights Act of 1991 (“Title I”) for “unlawful employment practices on the basis of sex (female) and retaliation, and [ ] to provide appropriate relief to a class of female employees similarly situated to Charging Party Heather Colletto (collectively, the ‘Claimants') who were adversely affected by such practices.” [Complaint at pg. 1.] The EEOC alleges that Defendants subjected Claimants to unwelcome physical and verbal sexual conduct, disparate treatment, constructive discharge, and retaliation on the basis of sex. [ Id. at pg. 2.]

The EEOC alleges that, during the relevant period between 2007 and 2008, ALTRES was under contract with La Rana for employment-related services, and Defendants were joint employers that “generally controlled the terms and conditions of the employment of the Claimants.” [ Id. at ¶ 8.] It argues that Defendants: (1) jointly hired and managed non-management employees; (2) shared common management over non-management employees, who were employed by both ALTRES and La Rana; (3) gave non-management employees an employee handbook containing sexual harassment policies created by ALTRES; and (4) instructed employees to direct complaints of sexual harassment to ALTRES, which investigated such allegations. [ Id.]

At some unspecified time, employee Heather Colletto filed charges with the EEOC alleging violations of Title VII by La Rana and ALTRES. [ Id. at ¶¶ 12, 15.] The EEOC investigated the charges and issued a Letter of Determination finding that Defendants subjected Colletto and a class of other similarly situated female employees to a hostile work environment, disparate treatment, constructive discharge, and retaliation in violation of Title VII. [ Id. at ¶ ¶ 13, 15, 16.] The EEOC claims that it attempted to eliminate the allegedly unlawful employment practices and effect voluntary compliance with Title VII. [ Id. at ¶ 17.]

The EEOC argues that, since at least 2007, Defendants engaged in unlawful employment practices in violation of Sections 703 and 704 of Title VII, 42 U.S.C. §§ 2000e–2 and 2000e–3. As to Section 703, the EEOC alleges “unwelcome sexual conduct, constructive discharge, and disparate treatment against females” that were “sufficiently severe and pervasive to adversely affect the terms and conditions of their employment and create a hostile, abusive work environment.” [ Id. at ¶ 20.] The EEOC alleges that: (1) there existed sexually explicit remarks by the owner toward a female server; sexual advances and demands by management officials to female employees; and sexual comments and unwanted touching of female employees' breasts and buttocks; (2) the conduct was unwelcome, and the female employees tried to rebuff or avoid the unwelcome conduct; (3) the sexual harassment was sufficiently severe and pervasive to create a hostile work environment; and (4) the

[888 F.Supp.2d 1023]

female employees took steps to stop the harassment and complained to Defendants' management officials, but Defendants “failed to take reasonable steps to prevent and correct the harassment, but instead engaged in tangible employment actions of reducing the female employees' hours, giving them less favorable working conditions, terminating them and/or causing their constructive discharge[.]” [ Id.]

Also regarding Section 703, the EEOC contends that Defendants subjected Colletto and other female employees to disparate treatment, as evidenced when Defendants assigned female employees to shorter work shifts, afforded them less desirable assignments with less earning opportunities, and stationed female employees only in certain areas of the restaurant. The EEOC also alleges that “Senor Frog's Human Resource Manager made [Defendants'] anti-female animus clear when at a meeting wherein other management [officials] explored the possibilities of hiring additional female bartenders, the Human Resources Manager disapprovingly rejected the idea saying he did not want more females as they were too much ‘drama[.]’ ” [ Id. at ¶ 22(c).]

As to Section 704, the EEOC alleges that Defendants retaliated against Colletto and other female employees for complaining of the hostile work environment: (1) female employees engaged in a protected activity when they complained of the unlawful sexual harassment to Defendants' management officials; (2) Defendants reduced female employees' work hours, gave them less favorable working conditions, and harassed them at work; and Defendants constructively discharged Colletto for engaging in a protected activity, while similarly situated employees who did not complain did not face retaliation. [ Id. at ¶ 21.]

The EEOC requests that the Court: (1) issue a permanent injunction enjoining Defendants from engaging in employment practices or retaliation that discriminate on the basis of sex; (2) order that Defendants institute and carry out policies, practices, and programs that provide equal employment opportunities; (3) order that Defendants pay backpay with prejudgment interest and other appropriate relief; (4) order that Defendants pay appropriate past and future pecuniary losses, and/or other appropriate relief; (5) order that Defendants pay compensation for past and future non-pecuniary losses; (6) order Defendants to pay punitive damages; (7) grant further relief as necessary; and (8) award the EEOC its costs. [ Id. at pgs. 10–11.]

II. The Conciliation Process

Both the ALTRES Motion and the La Rana Motion discuss the EEOC's investigation and correspondence with Defendants preceding the instigation of the present action.

According to ALTRES, it received a copy of the EEOC's Charge of Discrimination (“Charge”) on or around December 29, 2008. With respect to ALTRES, the Charge alleged that ALTRES ratified the hostile work environment and Colletto's constructive discharge by not taking “reasonable and/or necessary measures” to put a stop to the alleged wrongdoing. [Mem. in Supp. of ALTRES Motion at 2–3.]

The EEOC issued its Letter of Determination on or around June 27, 2011, in which it stated that, regarding Colletto's charges of discrimination:

No finding has been made with regards to Charging Party's allegations.

The Commission has determined that there is reasonable cause to believe that a class of female employees were subjected to sexual harassment, intimidation, adverse terms & conditions of employment and constructive discharge

[888 F.Supp.2d 1024]

because of their sex, female and/or in retaliation for engaging in protected activity.

ALTRES Motion, Decl. of Andrew Pepper (“Pepper Decl.”), Exh. 2 (emphasis omitted).

On or around July 29, 2011, the EEOC wrote:

The policies, procedures, and/or practices that ALTRES had during this period with respect to addressing discrimination and harassment occurring at a client's worksite failed to prevent the discrimination that occurred in this case. As such, it is necessary for ALTRES to revise and/or implement measures to ensure the proper handling of such discrimination or harassment at a client's worksite. The injunctive relief proposed in the attached Agreement seeks to achieve that goal.

The Commission is seeking monetary relief for a class of aggrieved individuals, to include the following:

1) Payment of $800 to Ms. Beverly Subia. This amount represents lost wages.

2) Payment of $200,000 for each of the two (2) identified Class Member [sic], Ms. Beverly Subia and Ms. Connie Sanchez. This amount constitutes non-pecuniary compensatory damages (emotional distress, pain and suffering) for any other aggrieved individuals identified by the EEOC.

3) Establishment of a Class Fund in the amount of $500,000. This amount constitutes economic damages (lost wages, benefits, etc.) and non-pecuniary compensatory damages...

To continue reading

Request your trial
10 practice notes
  • Equal Emp't Opportunity Comm'n v. Swissport Fueling, Inc., No. CV–10–02101–PHX–GMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • January 7, 2013
    ...how it reached its demands in the conciliation proceeding. See, e.g., Agro Distrib., 555 F.3d at 467–68;E.E.O.C. v. La Rana Haw., LLC, 888 F.Supp.2d 1019, 1044–45 (D.Haw.2012); E.E.O.C. v. Evans Fruit Co., Inc., 872 F.Supp.2d 1107, 1114–15 (E.D.Wash.2012). Here, the EEOC's initial offer of ......
  • U.S. Equal Emp't Opportunity Comm'n v. Global Horizons, Inc., CIVIL 11-00257 LEK
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • February 28, 2014
    ...obligation to conciliate in good faith, but that several other circuits have adopted a three-part test. EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1044 (D. Hawai`i2012). This Court observed that some district courts within the Ninth Circuit have applied the deferential approach, and......
  • Bowling v. Diamond Resorts Int'l, Inc., CIVIL NO. 17-00562 DKW-RLP
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • July 2, 2018
    ...various claims or how they each, in concert or individually, controlled the terms of her employment. See EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1046 (D. Haw. 2012) ("The EEOC must allege specifically what wrongdoing it is assigning to each Defendant. If the EEOC intends to proce......
  • Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, LLC, Case No. 4:11–CV–3425.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 4, 2014
    ...when they are [1 F.Supp.3d 654]provided with no information with which to evaluate their liability.” EEOC v. La Rana Hawaii, LLC, 888 F.Supp.2d 1019, 1045 (D.Haw.2012). If the Court determines that the EEOC “prematurely terminated negotiations,” it should impose a stay as provided for by th......
  • Request a trial to view additional results
10 cases
  • Equal Emp't Opportunity Comm'n v. Swissport Fueling, Inc., No. CV–10–02101–PHX–GMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • January 7, 2013
    ...how it reached its demands in the conciliation proceeding. See, e.g., Agro Distrib., 555 F.3d at 467–68;E.E.O.C. v. La Rana Haw., LLC, 888 F.Supp.2d 1019, 1044–45 (D.Haw.2012); E.E.O.C. v. Evans Fruit Co., Inc., 872 F.Supp.2d 1107, 1114–15 (E.D.Wash.2012). Here, the EEOC's initial offer of ......
  • U.S. Equal Emp't Opportunity Comm'n v. Global Horizons, Inc., CIVIL 11-00257 LEK
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • February 28, 2014
    ...obligation to conciliate in good faith, but that several other circuits have adopted a three-part test. EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1044 (D. Hawai`i2012). This Court observed that some district courts within the Ninth Circuit have applied the deferential approach, and......
  • Bowling v. Diamond Resorts Int'l, Inc., CIVIL NO. 17-00562 DKW-RLP
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • July 2, 2018
    ...various claims or how they each, in concert or individually, controlled the terms of her employment. See EEOC v. La Rana Hawaii, LLC, 888 F. Supp. 2d 1019, 1046 (D. Haw. 2012) ("The EEOC must allege specifically what wrongdoing it is assigning to each Defendant. If the EEOC intends to proce......
  • Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, LLC, Case No. 4:11–CV–3425.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • March 4, 2014
    ...when they are [1 F.Supp.3d 654]provided with no information with which to evaluate their liability.” EEOC v. La Rana Hawaii, LLC, 888 F.Supp.2d 1019, 1045 (D.Haw.2012). If the Court determines that the EEOC “prematurely terminated negotiations,” it should impose a stay as provided for by th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT