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Equal Employment Opportunity Commission v. JBS USA, LLC

United States District Court, D. Nebraska

August 19, 2016

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
JBS USA, LLC, Defendant. ABDI MOHAMED, et al., Plaintiffs/Intervenors, FARHAN ABDI, et al., Plaintiffs/Intervenors,

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion for Partial Judgment on the Amended Phase II Pleadings (Filing No. 751), the Motion to Dismiss Parties (Filing No. 781), and Motion for Summary Judgment (Filing No. 791), each filed by Defendant JBS USA, LLC (“JBS”). For the reasons stated below, the Motion for Partial Judgment on the Pleadings will be granted in part and denied in part; the Motion to Dismiss Parties will be granted; and the Motion for Summary Judgment will be granted.

         PROCEDURAL BACKGROUND

         I. Phase I and Bifurcation

         On April 15, 2011, Plaintiffs filed a joint Bifurcation Agreement to divide discovery and trial into two phases. Phase I involved pattern-or-practice claims presented by the Equal Employment Opportunity Commission (“EEOC”). (See Filing Nos. 76 at 3, 76-1.) Phase II was to address all individual claims for relief, and “[a]ny claims for which no pattern or practice liability was found in Phase I and any claims not tried in Phase I [to] be tried under the traditional McDonnell-Douglas burden-shifting paradigm [in Phase II], including all claims of harassment/hostile work environment, ” as well as “[i]ndividual entitlement to back pay, compensatory, and punitive damages.” (Filing No. 76.1 at 5.) On May 26, 2011, the Court adopted the Bifurcation Agreement. (Filing No. 81.)

         Discovery proceeded, and trial was held on the EEOC’s pattern-or-practice claims from May 7, 2013, through May 17, 2013. At the close of the EEOC’s evidence, JBS made an oral motion for judgment on partial findings pursuant to Fed.R.Civ.P. 52(c). Based on the agreement of the parties as reflected in the Final Pretrial Order, the Court permitted the submission of deposition designations and objections after the close of trial. (See Filing No. 479 at 12.) On July 1, 2013, the EEOC submitted deposition designations in support of, and in addition to, testimony and evidence presented at the Phase I trial. On October 11, 2013, the Court issued its Findings of Fact and Conclusions of Law. (Filing No. 516.) The Court concluded that although the EEOC established a prima facie case of denial of religious accommodation, the requested accommodations imposed an undue burden on JBS.

         II. Structure of Phase II Claims

         Plaintiffs remaining at the Phase II stage of proceedings include the EEOC and several individual Plaintiff/Intervenors. For purposes of this Motion, the Plaintiff/Intervenors who remain are divided into three categories, based on their representation by different counsel, or no counsel. The first category consists of Plaintiff/Intervenors Abdi Mohamed, et al. (“First Intervenors”). The second category consists of Plaintiff/Intervenors Farhan Abdi, et al. (“Second Intervenors”). The third category consists of Plaintiff/Intervenors no longer represented by counsel (“Pro Se Intervenors”).

         These categories are not to be confused with groupings used for purposes of discovery in the parties’ Joint Proposal for Groupings of Claimants and Case Progression for Phase II, adopted by the Court on May 1, 2015 (the “Groupings Order”). (See Filing No. 665 at 1.) The Joint Proposal divided remaining claimants into three groups for purposes of Phase II: Group A included individuals whose employment ended prior to September 18, 2008. Group B included individuals whose employment ended as part of the “mass termination” on September 18 and/or 19, 2008. Group C included individuals whose employment ended after September 19, 2008, or who remained employed by JBS. Discovery for Group B proceeded first. The Plaintiffs collectively selected two claimants from Group B and JBS selected two claimants from Group B, for Phase II discovery. Discovery and trial for Groups A and C are to commence after the Group B trial.

         III. Remaining Intervenors and Claims

         First Intervenors

         First Intervenors include Asha Abdi, Fatuma Abdullahi, Sirad Adan, Mohamud Ali, Ahmed Dalmar, Fartun Farah, Mohamed Jama Farah, Mohamed Mohamed, Ahmed Qurey, Istar Said, Shukri Wais, Fartun Warsame, and Burhan Yusuf. (Third Am. Compl., Filing No. 721 at 5-6.) The Court notes that Intervenors Hodan Abdulle, Shamso Abshir, Astur Egal, Khadija Hassan, Khadro Osman, and Deeq Said are all listed in the caption of First Invervenors’ Third Amended Complaint and in the List of Phase II Aggrieved Individuals and Phase II Claims for Such Individuals (Filing No. 619)[1], but are not listed in the body of the Third Amended Complaint under “Intervenor I members.” (Filing No. 721 at 1, 5-6.)

         First Intervenors present four counts in their Third Amended Complaint: Count I for wrongful termination based on “their religion, their prayer practices and/or requests for prayer accommodation” in violation of Title VII and the Nebraska Fair Employment Practices Act (“NFEPA”), Neb. Rev. Stat. §§ 48-1101 to 48-1125, 20-148 (Filing No. 721 at 7-8); Count II for wrongful termination based on national origin in violation of Title VII and the NFEPA (Filing No. 721 at 8); Count III for wrongful termination based on First Intervenors’ “race/color (black)” in violation of Title VII and the NFEPA (Filing No. 721 at 8-9); and Count IV for wrongful termination based on retaliatory conduct in violation of Title VII and the NFEPA (Filing No. 721 at 9-10).

         Second Intervenors

         Second Intervenors present four counts in their Second Amended Complaint (Filing No. 724), though not all Second Intervenors assert the same claims. Under Count I, Intervenors Rahma Mohamed Abdi, Sahra Botan, Saynab Farah, Mohammed Isak, Hawa Mohamud, Nimo Mohamed, Abdighani Muse, Maryan Muse (f/k/a Asha Muse), and Ayan Osman allege hostile work environment and harassment on the basis of their religion, race, and national origin in violation of Title VII. Under Count II, Intervenors Faydero Abdirahman, Abdirizaq Abdulle, Yasin Ahmed, Yusuf Dulane, Amina Farah, Amina Gelle, Hawa Mohamud, Sugra Olad (f/k/a Hodan Sirad), and Abdirahman Ahmed Yusuf allege discriminatory discipline, retaliation, and unlawful discharge on the basis of their religion, race, and national origin in violation of Title VII. Under Count IV, [2] Intervenors Rahma Mohamed Abdi, Sahra Botan, Saynab Farah, Hawa Mohamud, Nimo Mohamed, Abdighani Muse, Maryan Muse (f/k/a Asha Muse), and Ayan Osman allege hostile work environment on the basis of their religion, race, and national origin in violation of 42 U.S.C. § 1981. Finally, in Count IV, Intervenors Bashir Abdi, Farhan Abdi, Faydero Abdirahman (f/k/a Saynab Abdirahman), Abdirizaq Abdulle, Ahmed Adam, Mohamed Adan, Said Ali Ahmed, Sugule Ahmed, Yusuf Dulane, Amina Farah, Hassan Gabow, Amina Gelle, Abdikhadar Hassan, Mohamed Isak, Mohamed Isman, Musa Abdalla Mohamed, Sugra Olad (f/k/a Hodan Sirad), Mukhtar Omar, Ali Shire, Yusuf M. Solad, and Abdirahman Ahmed Yusuf allege discriminatory discipline, retaliation, and discharge on the basis of their religion, race, and national origin in violation of 42 U.S.C. § 1981.

         Pro Se Intervenors

         Intervenors Asli Abdille Abdullahi (a/k/a Ambiya R. Roble), Said Adoow, Noor Ahmed, Ahmed Farah Ali, Ayan Ali, Rashid Yusuf Hundule, Abdirisak Adan Abdulahi (a/k/a Hussein Hussein), Abdulkadir Jama, Mohamed Jama, Abdalle Hassan Mahamud, Hanad Mohammed, Yusuf Hassan Mohamud (a/k/a Abdalle Ali Mohamud), Astur Mur (a/k/a Astur Nur), Warsame Nur, Ali Abdi Hakim Said, and Abdulqani Yusuf are no longer represented by counsel. (Order dated July 27, 2015, Filing No. 710.) JBS has filed a Motion to Dismiss these Pro Se Intervenors due to “failure . . . to comply with the Court’s July 28, 2015 and September 17, 2015 Orders.” (Filing No. 782 at 3.)

         IV. EEOC Claims

         The EEOC filed its Third Amended Complaint (“EEOC Complaint”), alleging three causes of action on behalf of several aggrieved individuals identified in Revised Attachment A to the EEOC Complaint (the “Aggrieved Individuals”).[3] (EEOC Compl., Filing No. 730 at ECF 16-19.) Count I alleges religious discrimination in violation of Title VII on behalf of “aggrieved Somali Muslim employees” of JBS. (Filing No. 730 at 9.) Count II alleges discrimination on the basis of the Aggrieved Individuals’ national origin, in violation of Title VII. Count III alleges JBS illegally retaliated against the Aggrieved Individuals based on their requests for religious accommodation, in violation of Title VII. The EEOC seeks injunctive relief against JBS, as well as money damages to make whole the Aggrieved Individuals due to loss in compensation and other pecuniary and nonpecuniary losses.

         V. Group B Claimants

         The parties selected the following four representative claimants for Group B discovery purposes: Shamso Abshir, Tufah Hassan (formerly known as Sahara Noor and referred to in this Memorandum and Order as Sahara Noor), Abdiaziz Jama and Shukri Wais (referred to collectively as “Group B Claimants”). The EEOC seeks individual relief on behalf of all four Claimants. (See EEOC Compl. Doc. No. 730 at ECF 16-19.) First Intervenors seek individual relief for three of the Claimants: Abshir, Noor and Wais. None of the four Claimants is a member of Second Intervenors. (See Filing No. 724.)

         DISMISSAL FOR FAILURE TO COMPLY

         The Court first addresses JBS’s argument that the Pro Se Intervenors should be dismissed for failure to comply with the Court’s Order of July 28, 2015 (Filing No. 711) and September 17, 2015 (Filing No. 748.

         On July 27, 2015, counsel for the Farhan Abdi, et al., Plaintiff/Intervenors filed a Motion to Withdraw, seeking to withdraw as attorneys for 16 Plaintiff/Intervenors. (Filing No. 708.) The Court granted this motion on July 28, 2015, and the Council on American-Islamic Relations (“CAIR-Chicago”) was granted leave to withdraw as counsel for the 16 Plaintiff/Intervenors. (Filing No. 711.)

         The Court ordered CAIR-Chicago immediately to mail copies of the Order, by certified mail, to each of the Plaintiff/Intervenors, along with a letter “notifying them that it will no longer be representing them in this action, and detailing the overall status of this case.” (Id. ¶ 2.) On September 17, 2015, the Court entered a second Order (Filing No. 748), granting in part JBS’s Motion to Compel Answers to Interrogatories and Request for Sanctions (Filing No. 689). The Court ordered that the Plaintiff/Intervenors “shall supply verified responses to Defendant’s interrogatories within forty-five (45) days of this Order. Failure to do so may result in the imposition of sanctions, including, but not limited to, dismissal of these Plaintiff/Intervenors’ claims.” (Filing No. 748 at 2.) The Court further ordered that CAIR-Chicago “immediately mail copies of this Order, by certified mail, to the above-referenced Plaintiff/Intervenors at their last known addresses of record” and “file a certificate of service showing compliance with this Order.” (Id.) On September 20, 2015, CAIR-Chicago filed its Proof of Service, listing the 16 Plaintiff/Intervenors who had been served, via U.S. Certified Mail, with both of the Court’s Orders and the explanatory letter, on September 18, 2015. (Filing No. 750.) The record shows that the Pro Se Intervenors failed to comply with either order.

         Federal Rule of Civil Procedure 41(b) permits a defendant to move to dismiss any claims asserted against it by a plaintiff who “fails to prosecute or to comply with these rules or a court order . . . .” Similarly, NECivR 41.2 provides, “[a]t any time, a case not being prosecuted with reasonable diligence may be dismissed for lack of prosecution.” Here, the failure of the 16 Pro Se Plaintiff/Intervenors to comply with the Court’s July 28, 2015 and September 17, 2015 Orders is grounds for dismissal of their remaining claims. See, e.g., Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994) (“An action may be dismissed pursuant to Rule 41(b) if a plaintiff has failed to comply with any order of the court”); Henderson v. Renaissance Grand Hotel, 267 Fed.Appx. 496 (8th Cir 2008) (affirming dismissal of plaintiff’s Title VII action for failure to prosecute after finding that plaintiff failed to comply with court orders in a timely manner).

         Dismissal for failure to comply with a court order is appropriate regardless of whether the plaintiff is represented by counsel. See, e.g., Brantley v. BNSF Ry. Co., No. 4:12CV3215, 2014 WL 840641, *3 (D. Neb. March 4, 2014) (dismissing pro se litigant’s case for failing to comply with court’s discovery orders); Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 678 (N.D. Iowa 1995) (“Pro se litigants are not excused from complying with court orders or substantive and procedural law”). Where the Court orders a pro se plaintiff to file an update regarding his “intention to continue prosecution of his claims, ” failure to file such an update “or failure to do so in a timely manner will be deemed failure to prosecute . . . and may be deemed willful disobedience of a court order, resulting in dismissal . . . pursuant to Fed.R.Civ.P. 41(b).” Hancock v. Thalacker, 933 F.Supp. 1449, 1461 (N.D. Iowa 1996). Although a “pro se litigant should receive meaningful notice of what is expected of him, ” he is required to, at the very least, attempt in good faith to comply with the Court’s orders. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (dismissing pro se plaintiff’s case pursuant to Rule 41(b) after he failed to comply with the court’s pretrial orders to clarify his claims). Because the Pro Se Intervenors have not complied with the Court’s Orders, pursuant to Fed.R.Civ.P. 41(b) and NECivR 41.2, all their remaining claims will be dismissed, with prejudice.

         MOTION FOR JUDGMENT ON THE PLEADINGS

         STANDARD OF REVIEW

         “Judgment on the pleadings is appropriate where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law.” Minch Family LLLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960, 965 (8th Cir. 2010) (citing Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)). This is “the same standard used to address a motion to dismiss for failure to state a claim under Rule 12(b)(6).” Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). “To survive a motion to dismiss, the factual allegations in a complaint, assumed true, must suffice ‘to state a claim to relief that is plausible on its face.’” Northstar Indus., Inc. v. Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[A]lthough a complaint need not include detailed factual allegations, ‘a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.’” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “Instead, the complaint must set forth ‘enough facts to state a claim to relief that is plausible on its face.’” Id. at 630 (citing 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.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted). “Courts must accept . . . specific factual allegations as true but are not required to accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010)) (internal quotation marks omitted). When ruling on a defendant's motion to dismiss, a judge must rule “on the assumption that all the allegations in the complaint are true, ” and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 555, 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The complaint, however, must still “include sufficient factual allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009).

         DISCUSSION

         I. EEOC’s Fourth Amended Complaint

         The EEOC cannot seek individual relief on behalf of aggrieved individuals whose claims have already been dismissed in this lawsuit. Accordingly, JBS argues that the EEOC’s claims on behalf of twenty individuals must be dismissed. Two of the individuals, JBS argues, must be dismissed because the EEOC did not include their names on the January 2015 List of Phase II Aggrieved Individuals. The EEOC does not oppose dismissal of the two individuals-Mohamud Einead and Ali Salah-and the EEOC’s claims on their behalf will be dismissed.

         JBS also argues that the EEOC cannot seek recovery on behalf of eighteen other individuals (the “dismissed individuals”)[4] who had been dismissed by the Court’s Order of July 24, 2015 (the “Dismissal Order”) (Filing No. 706) for failure to prosecute. JBS argues that the EEOC cannot continue to seek individual relief for those whose claims have been dismissed with prejudice, because the doctrines of res judicata and “law of the case” prevent the EEOC from resurrecting dismissed claims.

         “Under res judicata, a judgment on the merits in an earlier lawsuit bars a second suit involving the same parties based on the same cause of action.” Prof'l Mgmt. Assocs., Inc. v. KPMG LLP, 345 F.3d 1030, 1032 (8th Cir. 2003). “[R]es judicata can apply to prevent reassertion of dismissed claims, even though there remain live claims in the same litigation” Wintermute v. Kansas Bankers Sur. Co., 630 F.3d 1063, 1067 (8th Cir. 2011) (quoting Lair v. Oglesby, 14 F.3d 15, 17 n.2 (8th Cir.1993)). “The requirements for application of res judicata are: 1) a final judgment on the merits, 2) based on proper jurisdiction, 3) between the same parties, and 4) based on the same claims or causes of action.” Wintermute, 630 F.3d at 1067 (citing Yankton Sioux Tribe v. U.S. Dep't of Health & Human Servs., 533 F.3d 634, 639 (8th Cir. 2008)). With respect to the EEOC’s claims, it is undisputed that the second element has been met, because there have been no allegations of jurisdictional deficiencies. The Court now must determine whether the first, third, and fourth elements of res judicata are met.

         A. Final Judgment on the Merits

         The first element has been met because, by rule, the Dismissal Order operated as an adjudication on the merits. The doctrine of res judicata is “applied only when the party against whom the earlier decision is being asserted had a ‘full and fair opportunity’ to litigate the issue in question.” Lovell v. Mixon, 719 F.2d 1373, 1376 (8th Cir. 1983) (quoting Kremer v. Chemical Construction Corp., 456 U.S. 461, 481 n. 22 (1982)). The EEOC appears to argue that res judicata cannot apply because the Dismissal Order was not on the merits, nor was it a final judgment. Regarding the merits, the EEOC concedes that under Federal Rule of Civil Procedure 41(b), the Court’s dismissal of the individual parties for failure to prosecute operated as an adjudication on the merits. (Filing No. 756 at 9.) Nevertheless, the EEOC argues in the same sentence that the dismissed individuals’ claims were not fully litigated and were dismissed only because they failed to respond to the Court’s Dismissal Order. This argument does not change the plain language of Rule 41(b), that a dismissal for failure to prosecute “operates as an adjudication on the merits.” Further, the dismissed individuals received a full and fair opportunity to present their claims and neglected to do so.

         The EEOC also asserts that the doctrine of res judicata requires a final judgment, and JBS’s Motion fails because the Dismissal Order did not constitute a final judgment under Rule 54(b). Rule 54(b) states that an order dismissing fewer than all the parties is not a final judgment from which an appeal lies. However, for purposes of the res judicata analysis, the Eighth Circuit has instructed that “[t]he availability of judicial review is merely one factor to consider in determining whether issue preclusion applies.” John Morrell & Co. v. Local Union 304A of United Food & Commercial Workers, AFL-CIO, 913 F.2d 544, 563 (8th Cir. 1990). “[F]inality in the context of issue preclusion may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” Id. (quoting Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961) (internal marks omitted)). The first element is not defeated merely because the Dismissal Order was not a final judgment. Because the Dismissal Order, by rule, constituted an adjudication on the merits, the Court concludes that the first element of res judicata is established.

         B. Privity Between the EEOC and the Dismissed Individuals

         The third element is met because the EEOC is in privity with the dismissed individuals. “The third element of res judicata requires that “both suits involve the same parties (or those in privity with them).” Rutherford v. Kessel, 560 F.3d 874, 877 (8th Cir. 2009). “When a government entity sues for the same relief that plaintiff has already pursued then the requisite closeness of interests for privity is present.” California v. IntelliGender, LLC, 771 F.3d 1169, 1179 (9th Cir. 2014) (quotation marks and citation omitted) (emphasis in original). The EEOC argues that it is not in privity with the dismissed individuals, and is merely pursuing its own statutorily-authorized claims which have not been adjudicated. To assess privity, the Court examines the EEOC’s statutory authority in relation to the interests of the dismissed individuals.

         Title VII provides that the EEOC may bring its own enforcement action and grants the EEOC the right to obtain all statutory remedies available under the law, including back pay. See 42 U.S.C. §§ 2000e-5(f)(1) and (g)(1); General Telephone Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 324 (1980). Compensatory and punitive damages are available to a “complaining party” under the law against a respondent who engaged in unlawful intentional discrimination. 42 U.S.C. § 1981a(a)(1). The term “complaining party” is defined to include “the Equal Employment Opportunity Commission, the Attorney General, [or] a person who may bring an action . . . [under Title VII].” 42 U.S.C. §1981a(d)(1)(B). Thus, following “a straightforward reading of the statute, ” the Supreme Court has held that the EEOC is authorized “to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 324-25 (1980). “As a complaining party, the EEOC may bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages.” EEOC v. Waffle House, Inc., 534 U.S. 279, 287 (2002).

         The EEOC asserts that because the statutory scheme permits the EEOC to enforce the law independently, it is not barred from pursuing its claims on behalf of the dismissed individuals. The Supreme Court has “recognized the difference between the EEOC's enforcement role and an individual employee's private cause of action.” Waffle House, Inc., 534 U.S. at 287. The Court has further explained that “the EEOC is not merely a proxy for the victims of discrimination . . . . Although [it] can secure specific relief, such as hiring or reinstatement . . ., on behalf of discrimination victims, the agency is guided by ‘the overriding public interest in equal employment opportunity . . . asserted through direct Federal enforcement.’” General Tel. Co., 446 U.S. at 326 (quoting 118 Cong. Rec. 4941 (1972)). Based on the EEOC’s distinct interest, the Supreme Court in Waffle House held that “[a]bsent textual support for a contrary view, it is the public agency's province-not that of the court-to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum.” Waffle House, Inc., 534 U.S. at 291-92.[5]

         Despite the EEOC’s distinct interests, courts have held that the EEOC is not permitted to “take a second bite of the apple” by asserting claims for make-whole relief on behalf of those whose claims were unsuccessful. See EEOC v. Sidley Austin LLP, 437 F.3d 695, 696 (7th Cir. 2006) (“Even though (this is the doctrinal heart of Waffle House) the EEOC is not in privity with the victims for whom it seeks relief, it does not follow that they must be permitted to take two bites from the same apple.”). For example, in EEOC v. Jefferson Dental Clinics, PA, 478 F.3d 690, 699 (5th Cir. 2007), the Fifth Circuit noted the Supreme Court’s holding in Waffle House was limited in that the Court stated that if an individual plaintiff “had accepted a monetary settlement, any recovery by the EEOC would be limited accordingly.” Jefferson Dental Clinics, 478 F.3d at 699 (quoting Waffle House, 534 U.S. at 296-97 (internal marks omitted). The Fifth Circuit explained that in the context of injunctive relief, the EEOC’s interests are clearly present. Id. at 698. “In the context of make-whole relief, however, the interests of the EEOC stack up poorly against the principle of res judicata.” Id.; see also California v. IntelliGender, LLC, 771 F.3d 1169, 1181 (9th Cir. 2014) (“Allowing the State's claims for restitution to advance would undermine those longstanding principles of preclusion, which we and other courts have recognized time and again under the basic rule that when the government seeks individual relief on behalf of an already defeated litigant, res judicata usually applies.”) (marks and citation omitted).

         In this case, to the extent the EEOC seeks make-whole relief on behalf of the dismissed individuals in the form of back-pay and monetary damages, the EEOC is seeking relief that the dismissed individuals have already pursued. Both parties recognize that neither the Eighth Circuit nor the Supreme Court have ruled whether the EEOC may seek make-whole relief on behalf of individual parties who have been dismissed for failure to prosecute in the same lawsuit. However, the Supreme Court in Waffle House expressly limited its holding by noting that “it goes without saying that the courts can and should preclude double recovery by an individual.” Waffle House, 534 U.S. at 297 (internal marks omitted) (quoting General Tel., 446 U.S. at 333). In making that statement, the Supreme Court cited approvingly to EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987). In Goodyear Aerospace, the Ninth Circuit recognized that, regarding the preclusive effect of pre-suit settlement, the statutory scheme supported the EEOC’s right to seek injunctive relief to protect employees as a class, but mooted the EEOC’s claim for back pay for an employee because “the public interest in a back pay award is minimal.” 813 F.2d at 1543. Similarly, although the EEOC has independent statutory authority to address discriminatory behavior, if the EEOC were permitted to pursue make-whole relief on behalf of the dismissed individuals, the Court would effectively be permitting an attempt at double recovery. The dismissed individuals had an opportunity to pursue their claims and obtain the very relief the EEOC now seeks on their behalf; however, their claims were dismissed with prejudice on the merits. Accordingly, the EEOC is in privity with the dismissed individuals, and the third element is met.

         C. Claims and Causes of Action

         “The fourth requirement of res judicata is that ‘both suits are based upon the same claims or causes of action.’” Yankton Sioux Tribe v. U.S. Dep't of Health & Human Servs., 533 F.3d 634, 641 (8th Cir. 2008) (quoting Costner v. URS Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998)). The Eighth Circuit has “determined that ‘a claim is barred by res judicata if it arises out of the same nucleus of operative facts as the prior claim.’” Yankton Sioux Tribe, 533 F.3d at 641 (quoting Lane v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990)). The EEOC does not assert that its claims are factually distinct from those of the dismissed individuals. Rather, as discussed above, the EEOC argues that the very nature of the EEOC’s legal interests renders its claims separate and distinct from the claims of the dismissed individuals. Thus, the EEOC’s position with respect to the fourth element appears to be intertwined with its argument with respect to the third element-that the EEOC is not in privity with the dismissed individuals. For the reasons discussed above, the Court concludes that the EEOC is in privity with the dismissed individuals. Accordingly, because their claims arise out of the same nucleus of operative facts, the fourth element is met.

         Because all elements of res judicata are met, the EEOC may not assert claims on behalf of the dismissed individuals.

         II. First Intervenors’ Third Amended Complaint

         JBS asserts that several parties and claims in the First Intervenors’ Third Amended Complaint must be dismissed. First, JBS claims that seven members of First Intervenors failed to file Title VII administrative charges, and must be dismissed. Second, JBS alleges that these seven members’ NFEPA claims are barred by the applicable statute of limitations. Third, JBS also alleges that all the First Intervenors’ race/color discrimination claims asserted in Count III of the Third Amended Complaint must be dismissed because the First Intervenors failed to allege any facts supporting those claims. Fourth, JBS asserts that the Title VII race/color discrimination claims asserted by thirteen members of First Intervenors must be dismissed because the thirteen individuals failed to allege race/color discrimination in their charges, and their NFEPA race/color discrimination claims are also time-barred. Fifth, JBS asserts that two of the First Intervenors who filed charges cannot maintain Title VII retaliation claims because they did not allege retaliation in their charges, and their NFEPA retaliation claims are also time-barred. Finally, JBS asserts that all the Section 1981 claims asserted in the Third Amended Complaint must be dismissed.

         A. Title VII Administrative Charges

         There is no dispute that seven members of the First Intervenors group failed to file administrative charges: (1) Hodan Abdulle, (2) Shamso Abshir, (3) Astur Egal Nur, (4) Khadija Hassan, (5) Tufah Hassan (f/k/a Sahara Noor), (6) Khadro Osman, and (7) Deeq Said. For ...


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