Equal Emp't Opportunity Comm'n v. Simbaki, Ltd.

• Decision Date: 17 September 2014
• Docket Number: No. 13–20387.,13–20387.
• Citation: 767 F.3d 475
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff v. SIMBAKI, LIMITED, doing business as Berryhill Baja Grill Cantina; Phillip J. Wattel; Simbaki–I, Incorporated, doing business as Berryhill Baja Grill Cantina; Berryhill Hot Tamales Corporation, doing business as Berryhill Baja Grill Cantina, also known as Corporate Berryhill, Defendants–Appellees v. Laura Baatz; Kimberly Kulig, Intervenor–Plaintiffs–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

767 F.3d 475

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff

v.SIMBAKI, LIMITED, doing business as Berryhill Baja Grill Cantina;

Phillip J. Wattel;

Simbaki–I, Incorporated, doing business as Berryhill Baja Grill Cantina;

Berryhill Hot Tamales Corporation, doing business as Berryhill Baja Grill Cantina, also known as Corporate Berryhill, Defendants–Appelleesv.Laura Baatz;

Kimberly Kulig, Intervenor–Plaintiffs–Appellants.

No. 13–20387.

United States Court of Appeals, Fifth Circuit.

Sept. 17, 2014.

As Revised Sept. 18, 2014.

Curtis Dean Herms, Jr., Allen, Vahrenwald & Johnson, L.L.C., Fort Collins, CO, Pam Rea, Stanley, Frank & Rose, L.L.P., Jill Danielle Schein, Ramey, Chandler, Quinn & Zito, P.C., Matthew Thomas Deffebach, Polly Benton Graham, Esq., Yasser A. Madriz, Meghaan Cecilia McElroy, Haynes & Boone, L.L.P., Houston, TX, for Defendants–Appellees.

John Bruce Shely, Esq., Mary Katherine Strahan, Esq., Andrews Kurth, L.L.P., Houston, TX, for Intervenor–Plaintiffs–Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

Opinion

EDITH BROWN CLEMENT, Circuit Judge:

Kimberly Kulig and Laura Baatz appeal the district court's dismissal of their Title VII lawsuit against Berryhill Hot Tamales Corporation for failure to exhaust administrative remedies. The district court based its exhaustion holding on a determination that only pro se parties may invoke the judicially-recognized exceptions to Title VII's named-party requirement. Because we determine that parties represented by counsel may too invoke the exceptions to the named-party requirement, we VACATE and REMAND for further proceedings consistent with this opinion.

I.

A.

Berryhill Baja Grill & Cantina is a chain restaurant with locations in Texas and Mexico. Individual Berryhill restaurants are either (1) “corporate stores” owned and operated by Berryhill's Corporate parent, Defendant Berryhill Hot Tamales Corporation (“Berryhill Corporate” or “Corporate”), or (2) franchise-locations operated by third-party owners.¹ Jeff Anon serves as the CEO of Berryhill Corporate.

Plaintiffs Kimberly Kulig and Laura Baatz worked for the Berryhill Baja Grill & Cantina on Montrose Street in Houston (“Berryhill Montrose” or “Montrose”). Berryhill Montrose is a franchise-location, and is owned and operated by Defendant Phillip Wattel.

Laura Baatz began work for Berryhill Montrose in 2003, though the story as to how she came to work for the Montrose location is both convoluted and disputed. Both parties agree that, after reading an advertisement in a local newspaper seeking bartenders, Baatz visited a Berryhill Corporate-owned restaurant to fill out a job application. And both parties also agree that she interviewed at the Berryhill Corporate-owned store the same day. The dispute concerns what happened next: Baatz claims that she was offered a job with Berryhill, and was sent over to the Berryhill Montrose location to fill out some pro forma paperwork and then begin work. Berryhill Corporate counters that Baatz was merely referred to the Berryhill Montrose location, and she had to apply for, and be offered, a job before beginning work. But regardless of whether Baatz was actually hired before she arrived at the Berryhill Montrose, both parties agree that Baatz then visited the Montrose restaurant and interviewed with Wattel. Baatz then began work.

By contrast, the story of how Plaintiff Kimberly Kulig came to work for Berryhill Montrose is undisputed. Kulig interviewed with, and was hired by, Berryhill Montrose in 2003.

While employed by Berryhill Montrose, Baatz and Kulig were sexually harassed by Wattel. Baatz and Kulig allege that he:

• Groped, slapped, and bit them. Some of the slaps were reportedly so hard that they caused bruises.

• Harassed them verbally.

• Asked them to sign napkins giving him permission to grab their bottoms.

• Exposed himself.

• Kissed them without permission.

• Showed up to work drunk.

Wattel concedes that:

• Berryhill Montrose was a “grab-assy place.”

• He patted Kulig on her bottom multiple times, and once spanked her so hard that she bruised.

• He bit Kulig.

• He asked Baatz to go out of town with him.

• He asked Baatz to have a child with him, but not in a “meaningful” way.

• He invited Baatz to join him on his boat, with the invitation “Pants okay, but not necessary.” Wattel argues he was just being helpful and advising her regarding the weather.

• After receiving complaints regarding the sexual harassment, he posted a sign indicating that “Notice: sexual harassment in this area will not be reported. However, it will be graded.” Wattel claims the sign was a joke that was intended to lighten the mood.

Baatz worked for Berryhill Montrose from 2003 until 2005, when she quit on account of the sexual harassment. However, Baatz rejoined Berryhill Montrose three weeks after quitting. She then worked until February 2008, when she either left (as she claims) or was fired (as Berryhill Montrose claims), after an incident where she left the bar unattended to go pick up medicine for her heart palpitations. Baatz alleges that her heart palpitations were brought on by Wattel's sexual harassment.

Kulig's employment with Berryhill Montrose follows a somewhat similar pattern. After a disagreement regarding the tip jar in 2005, Wattel fired her. Kulig then attempted to secure employment with another Berryhill restaurant, but was precluded from doing so by a Berryhill policy that prevented employees from transferring between Berryhill restaurants without the permission of their former boss. Kulig rejoined Berryhill Montrose in 2006, after being promised that she would be treated better. When her treatment did not improve, she quit again in December 2007.

B.

Fed up with the sexual harassment, Kulig and Baatz filed EEOC charges. Kulig filed in the fall of 2007, Baatz in spring of 2008. John Shely, a partner at Andrews Kurth LLP, and a patron of Berryhill Montrose, represented Baatz and Kulig when they filed their charges. The charges both appear to name the same entity, and complained of similar misconduct on Wattel's part:

• Kulig's charge named “Berryhill Baja Grill” and listed the defendant's street address as “3407, Montrose Boulevard, Suite A–8, Houston, TX 77006.” The charge noted that Kulig had “been subject to unwelcome conduct of a sexual nature since January 2007,” and alleges that after complaining about the “unwelcome conduct” her “hours were reduced.” Kulig's charge specifically notes that “Philip Wattel[ ], Owner, informed me of the reduced and restricted hours.”

• Baatz's charge also names the “Berryhill Baja Grill,” provides a Montrose Boulevard street address, and explains that she was “subjected to unwelcome sexual conduct by Mr. Philip Wat[t]el, Owner.” Baatz's charge further noted that “[t]he working environment became so intolerable that I was left no alternative but to quit my job.”

Even though the charges did not discuss Berryhill Corporate, EEOC twice (once for Kulig and once for Baatz) served notice on Berryhill Corporate that charges of discrimination had been filed against “your organization.” EEOC addressed the letters to Jeff Anon, who is Berryhill Corporate's CEO. Berryhill Corporate concedes it received the letters.

Kristine Troger, who was at the time Berryhill Corporate's Director of Operations and had previously dated Wattel,² led Berryhill Corporate's response to the EEOC charges.

• With respect to Kulig's charge, Troger called EEOC and informed them that Berryhill Montrose was not a “corporate store,” and Berryhill Corporate did not want to be involved. Troger asked that Berryhill Corporate be released from the charge by EEOC.

• With respect to Baatz's charge, Troger sent a letter to EEOC again indicating that they had nothing to do with Wattel's operation. The letter explained that “Mr. Wattel is not an owner or operator of Berryhill Hot Tamales Corp. He is the franchisee of the Montrose location of Berryhill Baja Grill.” The letter noted that “Mr. Wattel is solely responsible for answering to these allegations and Berryhill [Corporate] wishes to be removed as a party to the investigation.”

Beyond Troger's limited communications with EEOC, Berryhill Corporate's precise role during EEOC proceedings remains murky and a source of dispute. Corporate clearly knew that EEOC proceedings were occurring, and CEO Anon testified that Berryhill Corporate could have remained involved in the investigation had it chosen to. Further, internal EEOC documents indicate that EEOC considered Corporate to be a respondent in the matter, and EEOC's call log suggests that Troger received at least one phone call from EEOC that she did not return. However, Berryhill Corporate does not appear to have been invited to the fact-finding conference, and the majority of the notices relating to EEOC proceedings appear to have gone solely to Wattel at Berryhill Montrose.

C.

After its investigation was completed, EEOC determined that Wattel had engaged in sustained harassment in violation of Title VII. EEOC filed suit against Berryhill Montrose in the Southern District of Texas in 2012. A couple of months later Baatz and Kulig intervened, and added Wattel, Berryhill Corporate, and an additional Berryhill Montrose entity as defendants. Berryhill's Corporate's Title VII liability was based on either a single or joint-employer liability scheme. Baatz and Kulig also pled state law claims against Berryhill Corporate, but those claims were dismissed under Rule 12(b)(6), and not appealed here.

Critically for our purposes, Berryhill Corporate moved for summary judgment arguing that (1) Kulig and Baatz failed to exhaust their administrative remedies against Corporate because they did not name Corporate in their EEOC charges, (2) Kulig and Baatz could not show that Corporate was liable under Title VII through either a single employer or a joint employer liability scheme.

The district court agreed with Corporate that...