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U.S. Equal Employment Opportunity Commission v. Wirelesscomm Inc


May 15, 2012


United States District Court For the Northern District of California


Pending before the court is Deisy Mora's ("Mora") motion to intervene. Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") does not oppose this motion. Defendant 19 WirelessComm Inc. ("WirelessComm") does not oppose Mora's right to intervene. 20 WirelessComm, however, opposes Mora's motion on the grounds that the Proposed Complaint in 21

Intervention expands the scope of the EEOC action to include two new defendants and four new 22 causes of action. For the reasons discussed below, the motion is GRANTED. 23


On or about March 18, 2008, Mora filed charges with the California Department of Fair Employment and Housing ("DFEH") alleging sexual discrimination and harassment. See Proposed 26

Compl. in Intervention ¶ 13, Docket No. 11-3. On March 19, 2008, the DFEH issued Mora a right-27 to-sue notice, closed its case, and deferred its investigation to the EEOC. See id. On March 25, 28 2008, these same charges were filed with the EEOC. See id. On February 23, 2010, the EEOC issued a letter finding reasonable cause that Mora was subjected to a hostile work environment and 2 discriminated based on her sex, and that WirelessCom was aware of the harassment and failed to 3 correct or prevent the harassment. See id. ¶ 14. On September 28, 2011, the EEOC concluded its 4 investigation and filed the instant action alleging unlawful employment practices by 5

On December 2, 2011, Mora filed this Motion to Intervene as Plaintiff in the EEOC's 7 action to assert Title VII claims as well as state law claims for (1) sexual harassment, Cal. Gov. 8 WirelessComm in violation of 42 U.S.C. §§ 2000e--2(a)(1) ("Title VII"). See id. ¶ 15. 6

Code § 12940(k); (2) failure to prevent sexual harassment, Cal. Gov. Code § 12940(k); (3) 9 intentional infliction of emotional distress; and (4) negligent infliction of emotional distress. See id. 10

("Hadid"). See id.

Mora also seeks to add two individual defendants, Lahouari Aribi ("Aribi") and Karim Hadid 14 allows intervention upon timely application "when a statute of the United States confers an 15 unconditional right to intervene." 42 U.S.C. § 2000e-5(f)(1) states in relevant part that "the person 16 or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC] . . . ." 17

The motion to intervene to assert state law claims, on the other hand, is governed by Fed. R. Civ. P. 24(b), permitting intervention when "an applicant's claim or defense and the main action 20 have a question of law or fact in common." 21 24 federal law suit brought against defendant by the EEOC. 42 U.S.C. § 2000e--5(f)(1) ("The person 25 or person aggrieved shall have the right to intervene in a civil action brought by the Commission . . 26

Fed.R.Civ.P. 24(a) allows intervention upon timely application "when a statute of the United States 28 confers an unconditional right to intervene." The Motion to Intervene was filed roughly two


Mora move to intervene in the federal claims pursuant to Fed. R. Civ. P. 24(a), which 42 U.S.C. § 2000e-5(f)(1). 18


A. Intervention in the Title VII Claim

Title VII of the Civil Rights Act gives the applicants an unconditional right to intervene in a . ."); see also E.E.O.C. v. Occidental Life Ins. Co. of Cal., 535 F.2d 533, 542 (9th Cir.1976). 27 months after the EEOC filed its suit, before discovery in the case commenced. The motion is not 2 untimely. Accordingly, Mora's Motion to Intervene in the federal law claims is GRANTED. 3

Upon concluding that Mora is a proper party to this suit, the court must consider whether 4 she should be allowed to file her Proposed Complaint in Intervention to add new state causes of 5 action and new Defendants.

8 question of fact in common with the EEOC's federal claims against WirelessComm because all the 9 claims arise out of sexual harassment experienced at WirelessComm. WirelessComm argues that 10 the state law claims include additional elements not required in a Title VII claim but does not 11 dispute that the same events that give rise to the tort claims also give rise to the Title VII claims.

Thus, Mora's intervention to assert these state law claims meets the Rule 24(b) standard for 13 permissive intervention. The court therefore concludes that Mora may assert her state law claims. 14

Aribi, Mora's supervisor at WirelessComm. See Complaint in Intervention ¶ 2. Fed. R. Civ. P. 20 16 permits joinder of a defendant when the right to relief arises out of the same transaction or 17 occurrence, or series of transactions or occurrences, and if any question of law or fact common to 18 all defendants will arise in the action. Fed. R. Civ. P. 20(a). The Complaint filed by the EEOC 19 includes allegations about the behavior of WirelessComm's Store Manager, including 20 inappropriate comments and text messages, and Owner, including requesting pictures of Mora and 21 other female employees and inviting Mora to vacation with him. See Compl. ¶ 8. Mora's Proposed 22

Complaint in Intervention names these individuals and adds a small amount of additional detail 23 regarding their conduct. WirelessComm argues that Aribi should not be joined because he is not 24 alleged to have witnessed or performed most of the acts identified in the Complaint. 25

WirelessComm, however, does not argue that the allegations regarding Aribi's conduct fail to state 26 a claim against him. Additionally, WirelessComm does not dispute that the allegations regarding 27

Aribi and Hadid's actions in the Complaint in Intervention arise out of the same behavior alleged in 28 the EEOC's Complaint. Based on Mora's Complaint in Intervention, the same questions of whether

B. Mora's State Law Claims and New Defendants

Here, Mora's state-law employment discrimination and emotional distress claims have a Additionally, Mora seeks to assert claims against Hadid, the owner of WirelessComm, and Aribi and Hadid actually acted in the manner alleged by Mora will be at issue under both the Title 2 VII and state law claims. The court therefore concludes that Mora may join Aribi and Hadid as 3


6 emotional distress claims, the claims would be subject to an immediate motion to dismiss, and the 7 court therefore should decline to exercise its supplemental jurisdiction over these claims because 8 they are futile. In California, intentional and negligent infliction of emotional distress claims have a 9 two-year statute of limitations. Cal. Code Civ. Proc. § 335.1; Miller v. Bank of America, Nat. 10

C. Statute of Limitations

Finally, WirelessComm argues that the statute of limitations has run on each of the Ass'n, No. 3:11--cv--02588--MMA (BGS), 2012 WL 871321, at *8 (S.D. Cal. Mar. 14, 2012).

Mora's allegations regarding her emotional distress claims are based on conduct occurring before

her constructive termination in October 2007. See Proposed Compl. in Intervention ¶ 17. Mora's 13 emotional distress claims therefore are time barred unless the statute of limitations was tolled. 14

15 from the forum state, California." Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 16 1993). Under California law, a plaintiff is entitled to equitable tolling as he pursues a remedy in 17 another forum, when his actions establish (1) timely notice to the defendants in filing the first 18 claim; (2) lack of prejudice to the defendants in gathering evidence for the second claim; and (3) 19 good faith and reasonable conduct in filing the second claim. Id. at 1275. California's equitable 20 tolling test is a fact-intensive one, which calls for a practical inquiry that ordinarily requires the 21 court to consider matters outside the pleadings. Id. at 1276. For that reason, California's equitable 22 tolling test "is more appropriately applied at the summary judgment or trial stage of litigation." Id. 23

Although dismissal has been upheld in some cases where it is evident from the face of the 24 complaint that plaintiff could not prevail on the equitable tolling issue, ordinarily equitable tolling 25 is not properly resolved at the pleading stage. Id. at 1276; Compare Arnold v. United States, 816 26 F.2d 1306, 1312--13 (9th Cir. 1987) (upholding dismissal and finding that statute of limitations was 27 not tolled by employee's filing of her Title VII claim because the wrong underlying the Title VII 28 claim was distinct from that underlying the state-law tort claims, including intentional infliction of

"As with the limitations period itself, we borrow our rules for equitable tolling of the period


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