By Christopher DeGroff and Gerald L. Maatman, Jr.
On June 9, 2011, Judge Philip Brimmer in the U.S. District Court for the District of Colorado issued a complicated ruling addressing a tangle of administrative and procedural issues in the EEOC-initiated religious discrimination pattern or practice lawsuit entitled EEOC v. JBS USA, LLC, No. 10-CV-02103 (D. Colo. June 9, 2011). The decision examines the gamut of issues in EEOC pattern or practice litigation ranging from timeliness issues, administrative prerequisites, and the sometimes confounding interplay between governmental and private litigants.
The EEOC v. JBS case focused on the treatment of black Somali Muslim employees working at JBS’s Greeley, Colorado meat packing facility. The EEOC’s allegations included a host of claims, including harassment, discipline, discharge, and retaliation for engaging in protected activity. Employees also claimed that JBS refused to allow them to pray during breaks and did not accommodate their observance of particular Muslim holidays. As is noted below, it is significant that the employees were represented by the United Food and Commercial Workers Local #7, which was ringside for the back and forth between management and the Muslim employees. Ultimately, the EEOC sued on the employees’ behalf on a pattern or practice theory. Soon thereafter, two separate groups of employees filed their own respective complaints to intervene, seeking to join in the case en masse. JBS moved to dismiss all three cases, claiming each was fatally flawed.
In a 30 page opinion, Judge Brimmer navigated a number of thorny procedural and administrative issues, with some interesting results.
Strict Adherence To Time Limitations
We start with one of the few positive notes – the Court limited the intervenors’ claims to only those claims that occurred within 300 days of the filing of their respective administrative charges. For some intervenors, this would gut their individual claims, as the flashpoint of the case occurred during Ramadan 2008 and in some cases more the 300 days before they filed their charges. The Court acknowledged that with amorphous harassment claims, that claimants can sometimes rely on events outside of the 300 days, but noted that is not so of discrete acts. Failure to accommodate religious beliefs, discipline, discharge and retaliation are discrete acts that the Court ruled must occur within the 300 day window.
Unfortunately for JBS, the positive rulings end there.
Lenient View On Exhaustion Argument And Premature Filing
JBS also contended that the private litigants’ claims should be dismissed because some of the intervenors either filed unverified charges of discrimination, did not file charges at all, or in some cases filed suit before receiving a right to sue letter from the EEOC. The Court first acknowledged that Title VII plaintiffs are required to exhaust their administrative remedies with the EEOC before filing suit, and the fact that the intervenors in this case were also named in the EEOC’s lawsuit did not give them a pass on those prerequisites. Nonetheless, the Court took a broad view of those prerequisites. Even though the Court agreed that many of the charges were unverified, the Court reasoned that not every technical defect defeats a case. Here, JBS responded to all of the charges it received (even those that were unverified), was on notice of the claims facing it, and that this “technical” violation was not enough to stop the lawsuit.
But what of those intervenors who did not file a charge at all? Here, the Court relied on the “single filing rule,” allowing – in theory – the intervenors who did not file charges to piggyback on similar claims by those who had. We say “in theory” because the Court did not fully rule on this issue. Judge Brimmer asked for more briefing on just who had filed charges and who had not, and the timing of those charges.
The Court then turned to intervenors who filed their claims before receiving a right to sue letter. After an extensive discussion of the jurisdictional basis for a right to sue – and the fact that such a defect can be cured after the fact – the Court again sided with the intervenors.
Union Not A Necessary Party, Either To The Lawsuit Or To Conciliation Efforts
Finally, JBS argued that under the Federal Rules of Civil Procedure, it was impossible for either the EEOC or the two teams of private litigants to bring their claims without including the Union. JBS argued as much because much of the relief the parties sought included reinstatement, changes to policies and front pay to alleged victims – all elements that were in the Union’s wheelhouse. The Court disagreed, noting that none of the private litigants were claiming that the Union did anything wrong, and most of the relief could still be accomplished with our without resort to the collective bargaining agreement or the Union.
In a similar vein, JBS claimed that the EEOC had not met its pre-litigation obligation to attempt to conciliate the case in good faith because it had not involved the Union. Again, Judge Brimmer disagreed, noting that the EEOC had attempted to reach accord with the company, and the fact that the Union was not at the table did not erase those efforts.
This portion of the decision is significant inasmuch as the opposite ruling would have suggested that in virtually all cases with an organized workforce, a union would necessarily have to be named as party.
A Decision Without A Difference?
Despite the legal issues presented by JBS’s multi-pronged motions to dismiss, in the end it appears it may not have achieved much at all. Judge Brimmer was clearly not persuaded by JBS’s technical attacks on the pleadings, choosing instead to give the intervenors their day in court. But even if the Court had held for JBS and had stripped away the intervenor claims, JBS would still have been faced with an aggressive action by the EEOC – a pattern or practice lawsuit where the EEOC is often not held to the same rules as private litigants.
What is clear, however, is that with the EEOC’s increasing focus on large-scale litigation, employers can expect to see more and more intervenor actions, with private litigants making a grab for their personal claims while riding the government’s coat tails, or even partnering with the EEOC in a coordinated attack. Viewed in that light, JBS’s attempt to fragment the intervening parties appears worth the gamble, even if it was unsuccessful in this case.