Despite untimely charge, employee can intervene in EEOC’s sexual harassment suit
Thursday, June 20, 2019

Despite untimely charge, employee can intervene in EEOC’s sexual harassment suit

By Kathleen Kapusta, J.D.

Even though they worked at different restaurants, a female dishwasher’s claims of sexual harassment were nearly identical to a male line cook’s claims, said the court, and thus she could "piggyback" onto his timely filed charge.

Granting a motion to intervene in the EEOC’s Title VII sexual harassment lawsuit against the owner of two restaurants, which the agency filed on behalf of a line cook, a federal court in California found that although a former dishwasher at a different restaurant filed her charge almost a year after the statutory filing period had ended, she was exempt from the administrative requirement under the single filing rule as long as the motion to intervene was timely filed. And because two of the three factors in determining whether a motion to intervene was timely weighed in favor of allowing intervention, the court found she could intervene as of right (EEOC v. JCFB, Inc., June 19, 2019, Koh, L).

Dishwasher. The dishwasher, who began working at the Mediterranean Restaurant in December 2015, claimed that throughout her employment, the manager sexually harassed her. Among other things, she alleged, he stuck his tongue in her ear while she was washing dishes, put his hand under her shirt and grabbed her breast, told her if she wanted to be a prep cook she would have to sleep with him, and offered to pay her for sex. Although she complained, the harassment continued until she ultimately quit in May 2016. She filed a charge with the EEOC in February 2018.

Line cook. The line cook began working for the Port Bella restaurant in January 2016. He claimed that the same manager and another worker regularly groped his genitals and buttocks. Although he also complained, he was told "it’s all in good fun," and "they only play." Shortly after his employment ended, he filed a charge with the EEOC and the agency, after unsuccessfully attempting to conciliate, sued JCFB, Inc., the owner of both restaurants.

Motion to intervene. Less than three months later, both employees moved to intervene. Although neither party opposed intervention by the line cook, JCFB opposed the dishwasher’s motion. A party, the court observed, may intervene as a matter of right pursuant to Fed. Rule of Civ. Pro. 24(a)(1), which states that "[o]n timely motion, the court must permit anyone to intervene who is given an unconditional right to intervene by a federal statute." Further, pursuant to 42 U.S.C. § 2000e-5(f)(1), the "person or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC]." But the dishwasher, JCFB argued, was not an aggrieved person under 42 U.S.C. § 2000e-5(f)(1) because she failed to timely file her charge with the EEOC.

Single filing rule. While courts have held that to intervene as a matter of right, the person seeking to intervene must have exhausted her administrative remedies, the single filing—or piggybacking—rule is an exception to this requirement. The judicially created rule, which allows an individual to piggyback onto the timely EEOC charge filed by another plaintiff, is based on the observation that it would be duplicative and wasteful for complainants with similar grievances to have to file identical notices of intent to sue with a government agency.

Nearly identical claims. And here, the court pointed out, the dishwasher’s claims were nearly identical to the line cook’s. The fact that they worked at different restaurants was "a distinction without a difference," said the court, as both restaurants are owned by the same individuals; both are under the same roof as they "share a walk-in"; both share a linen and uniform storage area, break areas/smoking areas, wine cellar, and passage ways; much of the kitchen is common to both; and both share a general manager. Indeed, the court stated, the restaurants are so intertwined they share staff at times.

Further, both employees complained that they were sexually harassed by the same individual and both purportedly complained multiple times to restaurant management to no avail. While JCFB argued that how they were physically harassed differed, "the application of the single filing rule requires nearly identical claims, not identical claims," explained the court, noting that both employees alleged they were subjected to physical sexual harassment in sensitive, very private parts of their bodies.

As to JCFB’s contention that because they worked in different restaurants, there would be "different alleged witnesses to alleged events that took place at different times at different locations," this argument, observed the court, speaks to how the employees "might prove that harassment occurred and not whether their claims are nearly identical, which is the inquiry the Court must conduct." Accordingly, the court found the dishwasher had a right to intervene as long as the motion was timely filed.

Timeliness of motion to intervene. In determining whether a motion to intervene is timely, the court noted that it weighs three factors, the first being the stage of the proceeding at which an applicant seeks to intervene. Because the motion here was filed approximately three months after the EEOC’s complaint, the litigation was in its earliest stages and this factor weighed in favor of allowing intervention.

The second factor, prejudice to other parties, also weighed in favor of granting the motion as no party argued that they would be prejudiced. As to the third factor—reason for and length of delay—the interval between when the EEOC filed suit and the employees filed the motion to intervene was minimal and did not weigh against intervention, said the court, finding that both employees could intervene as of right in the lawsuit.

The case is No. 19-CV-00552-LHK.

Attorneys: Peter F. Laura for the EEOC. Ulrico Samuel Rosales (Wilson Sonsini Goodrich & Rosati) for JCFB, Inc. dba Porta Bella Restaurant dba Mediterranean Restaurant.

Companies: JCFB, Inc.; Porta Bella Restaurant; Mediterranean Restaurant

Cases: Procedure SexDiscrimination Discrimination SexualHarassment CaliforniaNews

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