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U.S. Equal Employment Opportunity Commission v. Sol Mexican Grill LLC

United States District Court, District of Columbia

November 12, 2019

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff
v.
SOL MEXICAN GRILL, LLC, et al., Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff, the United States Equal Employment Opportunity Commission (“EEOC”), brings this suit against Defendants, Sol Mexican Grill LLC and Sol Mexican Grill II LLC, pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The EEOC brings claims of unlawful employment practices on the basis of sex and retaliation on behalf of Claimant Johanna Cruz-Gomez, Claimant Glenda Leiva, and a class of similarly situated female employees. On June 13, 2019, in the midst of discovery, the EEOC filed an Amended Complaint removing claims which pertained to another individual claimant. Following the Amended Complaint, Defendants filed a partial Motion to Dismiss. In their Motion, Defendants argue that the claims brought on behalf of Claimant Leiva and a class of similarly situated female employees should be dismissed because the EEOC has not complied with class action requirements and because those claimants did not exhaust their administrative remedies. Defendants further argue that any claims against Sol Mexican Grill II should be dismissed because Sol Mexican Grill II was not named in Claimant Cruz-Gomez's originating charge of discrimination.

         Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court will DENY Defendants' [35] partial Motion to Dismiss. Because the EEOC's claims are not brought by a private litigant, the EEOC was not required to comply with class action requirements and the claimants on behalf of whom the EEOC brings claims were not required to exhaust their administrative remedies. Additionally, even though Sol Mexican Grill II was not included by name in the originating charge of discrimination, it remains a proper Defendant because it had notice of the EEOC proceedings, an opportunity to participate in conciliation, and an identity of interest with the named party.

         In resolving Defendants' partial Motion to Dismiss, the Court must also resolve two derivative motions. First, upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court will DENY the EEOC's [38] Motion for Leave to File a Sur-Reply. The arguments in the EEOC's Sur-Reply are not necessary to the Court's resolution of Defendants' partial Motion to Dismiss, and the EEOC faces no prejudice from a denial. Second, upon consideration of the pleadings, [3] the relevant legal authorities, and the record as a whole, the Court will GRANT the EEOC's [39] Motion to Strike and to Seal certain portions of Defendants' Reply in support of its partial Motion to Dismiss. The Court finds that Defendants' Reply and attached exhibit contain improper evidence of what was said and done during the EEOC's conciliation with Defendants. By statute, such information cannot be used as evidence in this lawsuit.

         I. BACKGROUND

         For the purposes of a Motion to Dismiss, the Court accepts as true the well-pled allegations in the EEOC's Amended Complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in the United States, 758 F.3d 296, 315 (D.C. Cir. 2014).

         The EEOC alleges that Claimant Cruz-Gomez filed a charge of discrimination with the EEOC based on sex discrimination and retaliation. Am. Compl., ECF No. 34, ¶ 9. On July 3, 2018, the EEOC issued to Defendants a Letter of Determination finding reasonable cause to believe that Defendants violated Title VII by subjecting Claimant Cruz-Gomez and a class of similarly situated female employees to sex discrimination and retaliation. The letter invited Defendants to engage in informal conciliation with the EEOC to eliminate voluntarily the violations and to provide appropriate relief. Id. at ¶ 10. The EEOC then alleges that it engaged in communications with Defendants in an attempt to voluntarily remedy the violations, but the EEOC was unable to secure a conciliation agreement. Id. at ¶¶ 11-12. On July 23, 2018, the EEOC issued to Defendants a Notice of Failure of Conciliation. Id. at ¶ 13. And, on September 26, 2018, the EEOC filed this lawsuit.

         As evidence of sex discrimination and retaliation, the Amended Complaint includes allegations involving Claimant Cruz-Gomez. The EEOC alleges that Claimant Cruz-Gomez was hired as a food preparer at Defendants' H Street restaurant, owned by Sol Mexican Grill, in April 2016. Id. at ¶ 15. Claimant Cruz-Gomez was supervised by Manager Maycol Salina. Id. at ¶ 16. The EEOC alleges that shortly after she was hired and continuing through her termination in June 2017, Claimant Cruz-Gomez was subject to harassment due to her sex. Id. at ¶ 17. This harassment included sexual comments, unwelcome touching, as well as retaliation when Claimant Cruz-Gomez complained about the harassment. Id.

         The Amended Complaint also includes allegations involving Claimant Leiva. Claimant Leiva was also hired as a food preparer at the H Street restaurant, owned by Sol Mexican Grill, and was supervised by Manager Salina. Id. at ¶¶ 18-19. The EEOC alleges that from approximately September 2016 through April 2017, Defendants subjected Claimant Leiva to harassment due to her sex. Id. at ¶ 17. This harassment included sexual comments and unwelcome touching as well as retaliation for complaining about the harassment. Id. The EEOC alleges that Claimant Leiva was transferred from the H Street location in April 2017 and was ultimately terminated in May 2017. In November 2017, Claimant Leiva was hired at Defendants' George Washington University restaurant, owned by Sol Mexican Grill II. Id. The EEOC claims that when Claimant Leiva reported the harassment which had previously occurred at the H Street restaurant, her hours at the George Washington University restaurant were reduced and she was ultimately terminated. Id.

         II. LEGAL STANDARD

         In their partial Motion to Dismiss, Defendants cite the standard for dismissal under both Federal Rules of Civil Procedure 12(b)(1), for lack of jurisdiction, and 12(b)(6), for failure to state a claim for which relief may be granted. However, Defendants fail to specify which of their arguments relate to this Court's jurisdiction to consider the EEOC's Amended Complaint. Lacking specificity from Defendants, the Court assumes that Defendants intended to challenge the Court's jurisdiction based on an alleged failure to exhaust the EEOC charge of discrimination filing requirements. Specifically, in their Motion, Defendants argue that Claimant Cruz-Gomez's charge of discrimination failed to include “similarly situated female employees, ” claims pertaining to Claimant Leiva, and any charges against Sol Mexican Grill II. As such, Defendants contend that the EEOC's claims relating to similarly situated female employees, Claimant Leiva, and Sol Mexican Grill II should be dismissed for failure to exhaust.

         However, Defendants' claims pertaining to administrative exhaustion do not go to the Court's jurisdiction to hear the EEOC's Amended Complaint. Defendants' arguments for dismissal are based largely on the EEOC charge filing requirements for private litigants. Even assuming, for purposes of deciding the standard of review, that these requirements apply to the EEOC, any failure to comply with charge filing or investigation requirements would not relate to this Court's jurisdiction. As the United States Supreme Court has explained, courts should be reluctant to place jurisdictional limitations on statutory requirements that do not refer to jurisdiction. See Fort Bend Cty., Texas v. Davis, 139 S.Ct. 1843, 1849-50 (2019). And, Defendants cite no references to this Court's jurisdiction in the charge filing and investigation requirements. Relatedly, courts have regularly held that requirements relating to charge filing and processing are not jurisdictional in nature. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982) (finding that the statutory time limit for filing a charge with the EEOC is not jurisdictional); Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006) (finding that the “employer” requirement of Title VII is not jurisdictional); Fort Bend, 139 S.Ct. at 1850 (finding the Title VII charge filing requirement to be not jurisdictional).

         In their Reply in support of their partial Motion to Dismiss, Defendants fail to address the EEOC's argument that Defendants' Motion does not raise jurisdictional arguments and should be evaluated pursuant to only Rule 12(b)(6). Based on the Court's above reasoning, as well as Defendants' apparent concession, the Court concludes that Defendants do not raise jurisdictional arguments and that Defendants' arguments in support of dismissal should be analyzed pursuant to Rule 12(b)(6).

         According to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

         III. DISCUSSION

         The Court begins by addressing two preliminary issues. First, the Court will address Plaintiff's Motion for Leave to File a Sur-Reply. Second, the Court will address whether or not Defendants' partial Motion to Dismiss is procedurally proper. After addressing these initial issues, the Court will go on to address the merits of Defendants' partial Motion to Dismiss. In addressing the merits of Defendants' partial Motion to Dismiss, the Court will also resolve the EEOC's Motion to Seal and Strike portions of Defendants' Reply in support of its partial Motion to Dismiss.

         A. The EEOC's Motion for Leave to File a Sur-Reply

         As an initial issue, the Court has considered the EEOC's Motion for Leave to File a Sur-Reply to Defendants' Reply to EEOC's Opposition to Defendants' Partial Motion to Dismiss. ECF No. 38. In its Motion, the EEOC explains that the Sur-Reply is necessary in order to respond to three new arguments which Defendants allegedly raised for the first time in their Reply in support of their partial Motion to Dismiss. “Surreplies are generally disfavored.” Hall v. U.S. Dep't of Labor, No. 18-5100, 2018 WL 5919255, at *1 (Nov. 1, 2018 D.C. Cir.). Whether or not to grant leave to file a Sur-Reply is left to the discretion of the district court. Banner Health v. Sebelius, 905 F.Supp.2d 174, 187 (D.D.C. 2012). A court considers “whether the movant's reply in fact raises arguments or issues for the first time, whether the nonmovant's proposed surreply would be helpful to the resolution of the pending motion, and whether the movant would be unduly prejudiced were leave to be granted.” Id.

         Here, the court need not decide whether or not Defendants' Reply in fact raises new arguments. Instead, the Court finds that the EEOC's proposed Sur-Reply would not be helpful to the Court's resolution of the pending partial Motion to Dismiss. Without the assistance of a Sur- Reply, the merits of any potentially new arguments raised in Defendants' Reply and addressed in the EEOC's Sur-Reply are evident to the Court. Additionally, the Court finds that the EEOC is not unduly prejudiced by the Court's refusal to grant leave to file a Sur-Reply. Even without relying on the arguments raised in the EEOC's proposed Sur-Reply, the Court denies Defendants' partial Motion to Dismiss. For these reasons, the Court DENIES the EEOC's [38] Motion for Leave to File a Sur-Reply.

         B. Timing of Defendants' Partial Motion to Dismiss

         As a second initial issue, the Court addresses the EEOC's argument that Defendants' partial Motion to Dismiss the Amended Complaint is procedurally improper. In the Amended Complaint, the EEOC only removed from the original Complaint the claims of one claimant. As such, the EEOC contends that Defendants could have, and should have, made their arguments in favor of dismissal in response to the EEOC's initial Complaint, rather than waiting for the Amended Complaint. By raising arguments for dismissal that could have been raised in response to the initial Complaint, the EEOC contends that Defendants' partial Motion to Dismiss the Amended Complaint is procedurally improper and should be denied.

         Pursuant to Federal Rule of Civil Procedure 12(b), a motion asserting Defendants' arguments “must be made before pleading if a responsive pleading is allowed.” However, as the EEOC acknowledges, this Rule is complicated by the filing of the Amended Complaint. An argument in favor of dismissal for failure to state a claim upon which relief can be granted may be raised “in any pleading allowed or ordered under Rule 7(a).” Fed.R.Civ.P. 12(h)(2)(A). One such pleading allowed under Rule 7(a) is “an answer to a complaint.” Fed.R.Civ.P. 7(a)(2). Here, Defendants responded to the EEOC's Original Complaint with an Answer asserting the defense that “[t]he complaint fails to state a claim upon which relief can be granted.” Answer, ECF No. 8. And, Defendants responded to the Amended Complaint ...


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