United States Equal Employment Opportunity Commission v. Giumarra Vineyards Corporation, No. 1:2009cv02255 - Document 18 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION RE: Plaintiff-Intervenors' 7 Motion to Intervene signed by Judge Oliver W. Wanger on 8/12/2010. The motion to intervene by Delfino Ochoa, Maribel Ochoa, Jose Ochoa, and Guadalupe Martinez is GRANTED. The Proposed Complaint in Intervention is ORDERED FILED. Defendant shall have twenty (20) days to respond to the complaint. Response due by 9/2/2010.(Bradley, A)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 10 1:09-CV-02255-OWW-SKO MEMORANDUM DECISION RE: PLAINTIFF-INTERVENORS MOTION TO INTERVENE (Doc. 7.) Plaintiff, 11 12 13 14 v. GIUMARRA VINEYARDS CORPORATION, et al., 15 Defendants. 16 I. 17 INTRODUCTION. 18 This matter is before the Court on Delfino Ochoa, Maribel 19 Ochoa, Jose Ochoa, and Guadalupe Martinez s motion to intervene in 20 this action 21 Procedure 22 ( Giumarra ) opposes the motion, arguing that the intervening 23 plaintiffs cannot introduce additional causes of action beyond what 24 was originally alleged in the EEOC s complaint. 25 objects to Guadalupe Martinez s motion in its entirety. 26 to Defendant, Martinez is not an "aggrieved person" under 42 U.S.C. 27 § 2000e-5(f)(1) and his reliance on the "single-filing" rule is 28 inapplicable to the facts of this case. as plaintiffs 24(a). pursuant Defendant to Giumarra 1 Federal Rule Vineyards of Civil Corporation Defendant also According II. 1 BACKGROUND. 2 The Equal Employment Opportunity Commission ( EEOC ) brought 3 the current action against Defendant Giumarra Vineyards Corporation 4 ( Giumarra ) on December 29, 2009. The EEOC filed suit under Title 5 VII of the Civil Rights Act of 1964, ( Title VII ), and Title I of 6 the Civil Rights Act of 1991, ( Title I ), to correct unlawful 7 employment practices and to provide relief to charging parties 8 Delfino Ochoa, Maribel Ochoa, and Jose Ochoa, as well as Guadalupe 9 Martinez, a similarly situated individual. 1 In its complaint, 10 the EEOC alleges that Giumarra subjected Maribel Ochoa to a hostile 11 work environment and retaliation. 12 Delfino Ochoa, Jose Ochoa, and Guadalupe Martinez were discharged 13 in 14 activity. retaliation for having The complaint also alleges that engaged in statutorily protected 15 According to the complaint, in early July 2007, Maribel Ochoa, 16 who was employed at Giumarra's Edison, California facility, was 17 subjected to unwelcome conduct of a sexual nature by a male co- 18 worker. (Compl. ¶ 11.) The co-worker allegedly told Maribel Ochoa 19 that he wanted to have sex with her, and openly discussed his 20 anatomy. 21 Ochoa complained to management in an attempt to end the harassment, 22 to no avail. (Id.) The repeated advances were unwelcome and Maribel (Id.) 23 It is alleged that on July 19, 2007, Delfino Ochoa, Maribel 24 Ochoa, Jose Ochoa, and Guadalupe Martinez complained to Giumarra 25 management concerning the sexual harassment of Maribel Ochoa, who 26 27 1 28 In its complaint, the EEOC refers to Mr. Martinez as Guadeloupe Martinez. 2 1 was seventeen years-old at the time. 2 individuals were allegedly terminated the next day, July 20, 2007. 3 (Id.) 4 employment in retaliation for their opposition to unlawful sexual 5 harassment in their workplace : According to the complaint, (Id. ¶ 12(a).) Giumarra The four terminated their The terminations occurred less than 24 hours after the complaints were made and well in advance of the growing season the Charging Parties and Mr. Martinez were supposed to work through. None of the Charging Parties, nor Mr. Martinez, were given any reason for the abrupt terminations and no other similarly situated farmer workers were discharged at that time in that manner. 6 7 8 9 10 11 (Id. ¶ 12(c).) 12 The EEOC seeks permanent injunctions enjoining Giumarra from 13 discriminating based on sex and from engaging in retaliation for 14 conduct protected by Title VII. It also seeks monetary relief that 15 would make Delfino Ochoa, Maribel Ochoa, Jose Ochoa, and Guadalupe 16 Martinez whole, compensation for past and future pecuniary losses, 17 compensation for past and future non-pecuniary losses, and punitive 18 damages for engaging in discriminatory practices. On February 9, 2010, Intervening-Plaintiffs filed this motion 19 intervene pursuant to 21 Plaintiffs 22 complaint except for two additions: (1) their Title VII claims 23 include allegations of discrimination/harassment based on national 24 origin; 25 discrimination, harassment, retaliation, and related claims under complaint to is Federal Rule 24(a).2 20 substantially similar Interveningto the EEOC's and (2) they advance state law claims of employment 26 27 28 2 Intervening-Plaintiffs attached a Proposed Complaint in Intervention For Damages and Injunctive Relief to their Rule 24(a) motion. (Doc. 7-2.) 3 1 the Fair Employment and Housing Act ( FEHA ), California Government 2 Code § 12940, et seq.3 3 4 5 Defendant Giumarra opposed the motion to intervene on March 29, 2010. Intervening-Plaintiffs filed their reply to Defendant s 6 opposition on April 5, 2010. 7 submitted: (1) a 21-page reply memorandum; (2) the Declaration of 8 Mario 9 numerous exhibits, including EEOC correspondence and right-to-sue 10 11 12 Martinez, letters.4 The counsel for In support of their reply, they Intervening-Plaintiffs; and (3) (Doc. 10.) EEOC has not filed an opposition or statement of non-opposition to the motion. 13 III. 14 15 LEGAL STANDARD. Four individuals seek to intervene in the EEOC's action: 16 Delfino Ochoa, Maribel Ochoa, Jose Ochoa, and Guadalupe Martinez. 17 Intervening-Plaintiffs argue that they are entitled to intervene as 18 a matter of right, pursuant to Rule 24(a) of the Civil Rules of 19 Civil Procedure. 20 shall 21 unconditional 22 applicant claims an interest which may, as a practical matter, be be Under Federal Rule 24(a), intervention of right permitted right when to either intervene federal statute confers in action, or the the when the 23 24 25 26 27 28 3 Intervening-Plaintiffs also advance claims pursuant to California Civil Code § 1942.5 and Government Code §§ 1955.7 and 12955(f). 4 It is expected that Intervening-Plaintiffs will familiarize themselves with the Eastern District of California s Local Rules and the Standing Order, which provides that reply briefs by moving parties shall not exceed 10 pages. 4 1 impaired or impeded by disposition of the pending action, and that 2 interest is not adequately represented by existing parties. 3 Title VII is one of the few statutes that provides individuals 4 a right to intervene. See 42 U.S.C. § 2000e-5(f)(1) ( [T]he person 5 or persons aggrieved shall have the right to intervene in a civil 6 action brought by the [EEOC].... ). 7 statutory provision permits individuals an unconditional right to 8 intervene under Rule 24(a)(1) in a Title VII enforcement action 9 brought by the EEOC against the employer. Most courts agree that this See, e.g., E.E.O.C. v. 10 University of Phoenix, Inc., No.06-2303-PHX-MHM, 2008 WL 1971396 at 11 *1 (D. Ariz. May 2, 2008). Federal Rule 24(a) imposes the additional requirement that the 12 13 application to intervene be timely. In order to determine whether 14 the motion to intervene is timely, the court considers the length 15 of time between the intervenor's learning of his interest and 16 filing, the prejudice to the defendant from intervention, the 17 prejudice to the intervenor from a denial of intervention, and any 18 unusual circumstances. 19 1083 (9th Cir. 2003) See Arakaki v. Cayetano, 324 F.3d 1078, 20 IV. 21 DISCUSSION. As a preliminary matter, courts in the Ninth Circuit have held 22 23 that an application for intervention 24 reference to the ultimate merits of the claim the intervenor seeks 25 to assert. See Cho v. Fujita Kanko Guam, Inc., No. CVA08-002, 2009 26 WL 5342508 (Guam Terr. Dec. 31, 2009) (citing Turn Key Gaming, Inc. 27 v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th Cir. 1998)). 28 24 is to be construed liberally, and doubts resolved in favor of 5 cannot be resolved by Rule 1 the proposed intervenor. 2 (9th Cir. 1998). 3 district court must accept as true nonconclusory allegations of the 4 motion 5 frivolity or other objections. 6 v. Berg, 268 F.3d 810, 819 (9th Cir. 2001). and Donnelly v. Glickman, 159 F.3d 405, 409 In considering a motion to intervene, the proposed complaint in intervention absent sham, Sw. Ctr. for Biological Diversity 7 Defendant organizes its opposition according to EEOC status, 8 i.e., it distinguishes between charging parties and similarly 9 situated individuals. As to Delfino Ochoa, Maribel Ochoa, and 10 Jose Ochoa, the charging parties, Defendant argues that they 11 cannot advance a national origin claim because the EEOC abandoned 12 those claims. 13 similarly situated individual, Defendant contends that the motion 14 should be denied in its entirety because he has not exhausted his 15 administrative remedies and the original EEOC charge does not 16 provide an adequate factual basis to allow piggybacking. With respect to Guadalupe Martinez, an alleged 17 18 A. Delfino Ochoa, Maribel Ochoa, and Jose Ochoa 1. 19 Right to Intervene 20 Applying Rule 24(a)'s first factor, it is undisputed that 21 Delfino Ochoa, Maribel Ochoa, and Jose Ochoa are aggrieved persons, 22 as they filed the charges upon which the EEOC's lawsuit is based. 23 See, e.g., E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 291 (2002) 24 ( If [...] the EEOC files suit on its own, the employee [...] may 25 intervene in the EEOC's suit. ); 26 Hertz, 27 (E.D.N.Y. 2003) (Under the provisions of 42 U.S.C. § 2000e-5(f)(1), 28 "an aggrieved person is defined as a person who has filed a charge Cherson & Rosenthal, P.C., 6 see also EEOC v. Rappaport, 273 F. Supp. 2d 260, 263 1 with the EEOC."). They have the unconditional right to intervene 2 in this case if their motion was timely. 3 2. 4 5 Timeliness Timeliness is determined by considering the totality of the 6 circumstances. 7 Here, 8 Intervenors motion to intervene is timely. 9 motion is not disputed, discovery in the case has not yet begun, 10 the trial date has not been set, and the motion was filed within 45 11 days of the filing of the complaint. 12 claims gave rise to the enforcement action and the motion was filed 13 at the earliest stage of the proceedings, allowing the Ochoa s to 14 intervene is unlikely to prejudice the parties. under NAACP v. New York, 413 U.S. 345, 365-66 (1973). the totality of the circumstances, the Ochoa The timeliness of the In addition, because their 15 3. 16 Arguments Opposing Intervention 17 Defendant Giumarra acknowledges that Delfino Ochoa, Maribel 18 Ochoa, and Jose Ochoa are entitled to intervene to advance hostile 19 work environment and retaliation claims. However, Defendant argues 20 the motion should be denied as to their national origin claims 21 because "[they] have not requested right-to-sue letters, and the 22 EEOC does not have appear to have issued such letters" on this 23 issue. 24 prerequisite to filing a lawsuit and, in this case, no letter was 25 obtained on their national origin claims. 26 According to Defendant, a right-to-sue letter is a Defendant s arguments are unpersuasive for two reasons. 27 First, Delfino Ochoa, Maribel Ochoa, and Jose Ochoa each received 28 a right-to-sue letter from the EEOC on April 5, 2010. 7 (Doc. 10- 1 2, pgs. 17 through 20.) The receipt of the right-to-sue letters, 2 which occurred one week after Defendant filed its opposition, moots 3 Defendant s opposition arguments. 4 authority for the proposition that Rule 24(a) intervention is 5 barred if Intervening-Plaintiffs receive the right-to-sue letters 6 after the commencement of litigation. 7 cases 8 generally, but does not cite a single case holding that subsequent 9 receipt of a right-to-sue letter by a charging party bars the 10 individual from intervening in the EEOC action. Absent controlling 11 or persuasive authority on the issue, the receipt of the right-to- 12 sue letters on April 5, 2010 controls the facts of this case and 13 permits intervention. discussing the Second, Defendant provides no parameters Defendant has cited several of right-to-sue letters 14 The parties briefing also includes a discussion of whether 15 Delfino Ochoa, Maribel Ochoa, and Jose Ochoa can properly maintain 16 their national origin claims pursuant to Surrell v. California 17 Water Service Co., 518 F.3d 1097 (9th Cir. 2008). 18 Ninth Circuit held that where a plaintiff is entitled to receive 19 a right-to-sue letter from the EEOC, a plaintiff may proceed absent 20 such a letter, provided they have received a right-to-sue letter 21 from the appropriate state agency. 5 22 receipt of right to sue letters resolves the Rule 24(a) motion as 23 to Delfino Ochoa, Maribel Ochoa, and Jose Ochoa s national origin 24 claims, it is unnecessary to determine whether the facts of this In Surrell, the Id. at 1005. Because the 25 26 27 28 5 Intervening-Plaintiffs also cite Surrell for the proposition that once a plaintiff is entitled to receive a right-to-sue-letter [...] it makes no difference whether the plaintiff actually obtained it." Id. at 1105. 8 1 case 2 Surrell. 3 4 fall squarely within the equitable rule recognized in Intervening-Plaintiffs Delfino Ochoa, Maribel Ochoa, and Jose Ochoa s motion to intervene is GRANTED. 5 6 B. Guadalupe Martinez 1. 7 Right to Intervene 8 The substance of Defendant s opposition is that Plaintiff- 9 Intervenor Guadalupe Martinez s is not an aggrieved person under 10 42 U.S.C. § 2000e-5(f)(1).6 11 not provided an adequate basis as to whether he filed a charge 12 with the EEOC relating to the allegations in this case [and] he 13 does not appear to have filed an EEOC charge. 14 5:13.) 15 (D. Kan. 2004) for the proposition that an aggrieved person is 16 limited to persons who have filed a charge with the EEOC. 7 According to Defendant, Martinez has (Doc. 9 at 5:12- Defendant cites EEOC v. GMRI, Inc., 221 F.R.D. 562, 563 17 Mr. Martinez acknowledges that he has not yet received a 18 "right-to-sue" letter from the EEOC concerning his claims against 19 20 21 22 23 6 For the reasons stated in IV(A)(2), supra, the timeliness of Martinez s motion to intervene is not disputed and is not a bar to intervention. Mr. Martinez and the Ochoa Intervenors filed a single motion to intervene, which was filed within 45 days of the filing of the EEOC s Complaint. 24 7 25 26 27 28 EEOC v. GMRI, Inc. was limited to whether the charging party had a right to intervene in the EEOC s case. See id. at 563-64 ( Here, it is undisputed that Ms. Dawson is the aggrieved person, as she is the person who filed the charge upon which the EEOC's lawsuit is based. She therefore has the unconditional right to intervene in this case. ). It is undisputed that Mr. Martinez is not a charging party in this case. 9 1 Defendant Giumarra.8 2 "single filing" exception to the individual filing requirement 3 supports his motion to intervene. 4 known alternatively as the "single filing rule" or "piggybacking," 5 an individual who has not filed an administrative charge can 6 "piggyback" on an EEOC complaint filed by another person who is 7 similarly situated.9 8 Corp., 267 F.3d 1095, 1110 (10th Cir. 2001). Mr. Martinez contends, however, that the Under this exception, which is See, e.g., Thiessen v. Gen. Elec. Capital 9 "The policy behind the single filing rule is that it would be 10 wasteful, if not vain, for numerous employees, all with the same 11 grievance, to have to process many identical complaints with the 12 EEOC." Id. The rule intends to "give effect to the remedial 13 14 15 16 17 18 19 20 21 22 23 8 While it is unclear whether Mr. Martinez filed a charge with the EEOC prior to the commencement of this action in December 2009, it is undisputed that he has not received a right to sue letter from the EEOC. According to his counsel s declaration, Mr. Martinez contacted the EEOC s Los Angeles office in 2007, but his charge was lost and the EEOC legal staff [could not] explain why a charge was not ultimately filed on behalf of Mr. Martinez. (Doc. 10-2 ¶ 4-5.) Counsel further explains that Martinez fully participated in the litigation both before and after the charges were filed, taking part in two formal interviews with the EEOC prior to December 2009. (Id. ¶ 6.) At oral argument on May 17, 2010, the EEOC s counsel clarified that, according to its records, Mr. Martinez contacted the EEOC in 2007, but the file was closed due to inactivity. As such, the nature and purpose of Mr. Martinez s inquiry is unknown, however, it is undisputed that Mr. Martinez did not follow-up with his initial query at the EEOC s Los Angeles office. 24 9 25 26 27 28 Although the Ninth Circuit has not specifically addressed the issue, the single filing rule has been applied under various circumstances by the Second, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits. See, e.g., Anderson v. Unisys Corp., 47 F.3d 302, 308 (8th Cir. 1995); see also Anson v. Univ. of Tex. Health Science Ctr., 962 F.2d 539, 541 (5th Cir. 1992) (The single filing rule is universally [held]. ). 10 1 purposes 2 plaintiffs from [a Title VII] class action simply because they have 3 not performed the useless act of filing a charge. Foster v. 4 Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004). An act of 5 filing an EEOC charge is deemed useless in situations in which 6 the 7 discrimination 8 filings. 9 657, 659 (D. Colo. 2007) (citation omitted). The Tenth Circuit has 10 11 12 13 of [Title employer is VII] already claims, and on thus to not notice negating exclude that other the Plaintiffs need for suitable may file additional EEOC v. Outback Steak House of Fla., Inc., 245 F.R.D. observed: As long as the EEOC and the company are aware of the nature and scope of the allegations, the purposes behind the filing requirement are satisfied and no injustice or contravention of congressional intent occurs by allowing piggybacking. 14 Thiessen, 267 F.3d at 1110. 15 Courts often look to the predicate or actually filed EEOC 16 charge to determine whether a company had sufficient notice to 17 support piggybacking in a given case.10 See, e.g., Gitlitz v. 18 Compagnie Nationale Air France, 129 F.3d 554, 558 (11th Cir. 1997) 19 ( A plaintiff who has not filed an individual EEOC charge may 20 invoke the single-filing rule where such plaintiff is similarly 21 situated to the person who actually filed an EEOC charge, and where 22 the EEOC charge actually filed gave the employer notice of the 23 collective or class-wide nature of the charge. ); EEOC v. Cal. 24 Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1265 ( A 25 26 27 28 10 In this case, the actually filed charges are the EEOC charges filed by Delfino Ochoa, Maribel Ochoa, and Jose Ochoa on October 31 and November 15, 2007. 11 1 charge will be adequate to support piggybacking under the single 2 filing rule if it contains sufficient factual information to notify 3 prospective defendants of their potential liability and permit the 4 EEOC to notify prospective defendants of their potential liability 5 and permit the EEOC to attempt informal conciliation of the claims 6 before a lawsuit is filed. ); 7 579 F. Supp. 2d 1342, 1345 (D. Colo. 2008) (finding that the 8 single-filing rule is appropriate where the EEOC charge actually 9 filed gave the employer notice of the collective or class-wide of the charge. ) see also EEOC v. Albertson's LLC, 10 nature (emphasis added). A review of the 11 actually filed EEOC charge guarantees that the settlement of 12 grievances [was] attempted first through the EEOC. 13 Partners Nat. Health Plans, 986 F.2d 446, 450 (11th Cir. 1993).11 Calloway v. 14 Whether Guimarra had sufficient notice of the cumulative or 15 class-like nature of the allegations is heavily disputed. Guimarra 16 argues that the earlier EEOC charges did not reference similarly 17 situated individuals or class allegations, therefore Mr. Martinez 18 cannot avail himself of the single filing rule. Guimarra explains: 19 The EEOC Charges of Discrimination at issue in this case 20 11 21 22 23 24 25 26 27 28 Calloway explained the importance of the EEOC in the context of the single filing rule: Each of these applications of the single-filing rule has been grounded in the purpose of the EEOC charge requirement that the settlement of grievances be first attempted through the office of the EEOC. By requiring that the relied upon charge be otherwise valid, and that the individual claims of the filing and non-filing plaintiff arise out of similar discriminatory treatment in the same time frame, we have ensured that no plaintiff be permitted to bring suit until the EEOC has been given the opportunity to address the grievance. Indeed, we have rebuffed attempts to invoke the single-filing rule where the relied upon charge is invalid, or where the claimed discriminatory treatment is not similar or does not arise out of the same time frame. Id. at 450. 12 brought by Delfina Ochoa, Maribel Ochoa, and Jose Ochoa do not contain reference to other similarly situated or similarly aggrieved individuals on whose behalf those charges are being brought. Indeed, there is no indication or reference to any other employees other than the charging parties themselves in each of the Ochoas charges. Here, not only is there no reference to Martinez or any other similarly situated individuals in the Ochoas EEOC charges, but as to the retaliation claims, on which Martinez also seeks to piggyback here, the charges actually specifically indicate that it was the Ochoas family whom was asked to leave, but there is no reference to any other persons, including Martinez, or similarly situated individuals, who are alleged to have been terminated. For this reason, Martinez cannot piggyback on the Ochoas EEOC charges, and he cannot rely on the single filing rule to intervene in this case. 1 2 3 4 5 6 7 8 9 10 11 (Doc. 9 at 7:12-7:23.) Mr. Martinez rejoins that Guimarra had sufficient notice of 12 13 the collective nature of the action as early as December 2007. 14 Martinez relies on two facts to support this assertion: 15 December 21, 2007 letter from Guimarra s counsel to the EEOC, which 16 identifies Mr. Martinez as Ms. Ochoa's boyfriend and states that 17 he quit his job with the Ochoa's on July 17, 2007; and (2) the 18 EEOC's Letters of Determination, sent to Giumarra on August 10, 19 2009, that provide in relevant part:12 20 that the evidence indicates that there is reasonable cause to 21 believe that Charging Party and other similarly situated employees 22 were 23 engaging 24 harassment and/or participating in a complaint or investigation of subjected in to the retaliation legally when protected Mr. (1) a The Commission also finds they were activity terminated opposing for sexual 25 26 27 28 12 The EEOC issued three near-identical Letters of Determination, one for each claimant, on August 10, 2009. Intervening-Plaintiffs attached the letters to their reply, which was filed on April 5, 2010. (Doc. 10-2.) 13 1 sexual harassment. 2 together, establish that Guimarra had sufficient knowledge to allow 3 piggybacking in this case. 4 Guimarra s Mr. Martinez claims that these letters, taken arguments Although the 7 individuals or class allegations specifically, they did provide 8 sufficient information to allow piggybacking in this case. 9 example, Intervening-Plaintiff Maribel Ochoa s EEOC charge provides 10 that she was harassed and discriminated against based on [her] 11 national origin, and that a crew leader often yelled at me, my 12 family, and other indigenous crew members, saying that we are 13 Indians who could not speak Spanish as a second language. Delfino 14 Ochoa and Jose Ochoa s EEOC charges also provide that they and 15 other Guimarra employees were denigrated and discriminated against 16 based on their national origin. 17 allegations 18 discrimination claims from similarly situated employees, which 19 includes Intervening-Plaintiff Guadalupe Martinez. There put is not Guimarra also evidence unpersuasive. the relevant did are of 6 charges it understanding allegations EEOC against its 5 20 made concerning reference on that similarly situated For At a minimum, these factual notice of national Guimarra had notice origin of the 21 collective nature of the retaliation claims. 22 charges, by themselves, lack sufficient cumulative content to 23 support piggybacking on this claim, Guimarra had notice based on 24 the EEOC s investigation and correspondence from 2007 onward. 25 instance, in its December 21, 2007 letter to the EEOC, Guimarra 26 acknowledged that the Ochoas and Mr. Martinez came in to the 27 Guimarra payroll office and asked to speak with the payroll clerk 28 stating they wanted their final checks because they were quitting. 14 Although the EEOC For 1 The separation was allegedly a result of retaliation and sexual 2 harassment. 3 Determination, the operative EEOC complaint, and the Proposed 4 Complaint in Intervention, identify Mr. Martinez as a similarly 5 situated employee who was subjected to retaliation when he was 6 terminated 7 opposing 8 intervention in this case. More for sexual specifically, engaging in legally harassment. All the EEOC s protected of this Letters activity, evidence of i.e., supports 9 Mr. Martinez s motion to intervene is granted for another 10 reason, namely that most courts confronting the issue have adopted 11 a test requiring only that the timely exhausted claims and the 12 non-exhausted claims arise out of the same circumstances and occur 13 within the same general time-frame. 14 House of Fla., Inc., 245 F.R.D. at 659 (cataloging cases applying 15 the prevailing test). 16 case, Martinez's claim is nearly identical to Delfino Ochoa, 17 Maribel Ochoa, and Jose Ochoa's in terms of temporal proximity and 18 subject matter. 19 on the same day as the Ochoas, for the same reasons - retaliation 20 and national origin discrimination. They also worked on the same 21 "picking the 22 housing unit, and, on July 17, 2007, collectively complained to the 23 same two Giumarra employees, Ms. Ana Felix and Ms. Anna Gonzalez. 24 Under the test employed by a number of district courts throughout 25 the United States, Mr. Martinez can piggyback his claims onto those 26 of the charging parties, the Ochoas. 27 579 F. Supp. 2d at 1347 ( [The Court] find[s] that the rationale 28 and reasoning in EEOC v. Outback Steak House - in conjunction with line," See EEOC v. Outback Steak Applying that test to the facts of this In particular, Martinez was allegedly terminated lived together 15 in same Giumarra-provided See EEOC v. Albertson's LLC, 1 the single file doctrine as adopted by the Tenth Circuit and 2 discussed above - to be persuasive and applicable here. ).13 3 4 5 6 7 8 9 10 11 12 13 14 15 On similar facts, EEOC v. Outback Steak House of Fla., Inc., 245 F.R.D. 657, held: Based on [the Tenth Circuit s] application of the single filing rule, I hold that a plaintiff who failed to file a charge of discrimination with the EEOC, but who asserts she was subject to similar discrimination by the same actors during the same time frame as the charging parties, is an aggrieved person' within the meaning of section 2000e-(f)(1). In the instant case, Defendants do not deny that Applicant Joffee's complaint in intervention asserts she was subject to similar discrimination by the same actors during the same time frame as [charging] Plaintiffs. Accordingly, under the facts of this case, I find that Applicant Joffee's filing of a charge with the EEOC would have been useless and she may now piggyback her claim onto those of the charging parties. Defendants' contention that this court lacks subject matter jurisdiction due to Applicant Joffee's failure to exhaust remedies is similarly misplaced. The single filing rule is an exception to the requirement of exhaustion. 16 Id. at 659-60. 17 This language applies with equal force to the present facts 18 because Outback, like this case, analyzed whether a non-charging 19 party could intervene in an action where the individual was subject 20 to similar discrimination by the same actors during the same time21 frame. 22 23 13 24 25 26 27 28 Albertson's framed the relevant legal issue as: [D]oes the definition of persons aggrieved set forth in 42 U.S.C. § 2000e-5(f)(1) provide a statutory right to intervene in an EEOC enforcement action to persons other than the party whose charge is the basis of the lawsuit. Id. at 1347. The Albertson s court concluded that the Applicants here are aggrieved persons, as set forth in 42 U.S.C. § 2000e-5(f)(1), and thus are given an unconditional right to intervene by federal statute pursuant to Fed.R.Civ.P. 24(a)(1). Id. 16 Here, Defendant s arguments are not meritless. 1 First, there 2 is no Ninth Circuit authority on point and motions to intervene 3 cannot be resolved by reference to the ultimate merits of the 4 claims asserted. 5 application and scope of piggybacking in the Rule 24(a) context, 6 the analogous precedent from other circuit and district courts is 7 persuasive. 8 Postmasters of the United States, 497 F.3d 972, 977 9 2007) ( Because there is no Ninth Circuit authority discussing 10 FEHBA pre-emption issues involving the claims of a third-party 11 health care provider, we may look to analogous cases involving the 12 application of ERISA's pre-emption provision. ). Absent Ninth Circuit authority defining the See, e.g., Cedars-Sinai Med. Ctr. v. Nat l League of n. 2 (9th Cir. 13 Under those precedents, Guimarra had sufficient notice of the 14 nature and scope of the allegations to satisfy the requirements of 15 the 16 specifically identify similarly situated persons or Mr. Martinez 17 by name, Guimarra has cited no legal authority that such specific 18 disclosure is a prerequisite to operation of the single filing 19 rule. Rather, the opposite is true.14 See Dukes v. Wal-Mart Stores 20 Inc., 21 (analyzing the actually filed EEOC charges and the complaint to 22 determine 23 piggybacking.) 24 was 25 correspondence, which commenced in 2007 and continued through late single filing 2002 WL 32769185 whether removed rule. there While at 10-12 was the EEOC (N.D. charges Cal. sufficient Sept. notice to did 9, not 2002) support Further, any uncertainty over the requisite notice by virtue of the EEOC's investigation and 26 27 28 14 Moreover, as explained above, the Ochoas EEOC charges provided adequate notice of the collective nature of the allegations against Defendant. 17 1 2009. On the current record and resolving doubts in favor of the 2 proposed 3 retaliation 4 individuals, which includes Mr. Martinez. intervenor, and Guimarra had discrimination adequate claims of notice similarly of the situated 5 Even accepting Guimarra s arguments that the EEOC charges did 6 not provide adequate notice of the collective nature of the claims 7 against it, it still could not prevail. As explained in Gitlitz v. 8 Compagnie Nationale Air France, 129 F.3d 554 and EEOC v. California 9 Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, the analytical 10 touchstone of the single filing rule is whether the company had 11 adequate 12 conciliation. Based on the current record, this standard was met. 13 If discovery reveals otherwise, the issue can be addressed pursuant 14 to a dispositive motion. notice of the grievance to provide a basis for 15 As Intervening-Plaintiff Mr. Martinez is an "aggrieved person" 16 under 42 U.S.C. § 2000e-5(f)(1), he has the right to intervene in 17 this case. 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // The motion is GRANTED. 18 V. CONCLUSION 1 2 For the reasons stated: 3 1. The motion to intervene by Delfino Ochoa, Maribel Ochoa, Jose Ochoa, and Guadalupe Martinez is GRANTED. 4 5 2. The Proposed Complaint in Intervention is ORDERED FILED. 3. 6 Defendant shall have twenty (20) days to respond to the 7 8 complaint. 9 10 11 IT IS SO ORDERED. 12 Dated: aa70i8 August 12, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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