1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 U.S. EQUAL EMPLOYMENT Case No.: 3:18-CV-1853 W (AGS) OPPORTUNITY COMMISSION, 12 ORDER DENYING SIDNEY Plaintiff, 13 SCOTT’S MOTION TO INTERVENE v. OR, ALTERNATIVELY, FOR 14 MEDIATION [DOC. 120] BAY CLUB FAIRBANKS RANCH, LLC 15 d/b/a FAIRBANKS RANCH COUNTRY 16 CLUB; FAIRBANKS RANCH COUNTRY CLUB, INC., 17 Defendants. 18 19 20 Charging Party Sidney Scott, acting in pro per, has filed a motion to intervene or, 21 alternatively, for mediation. (Mot. Intervene [Doc. 120].) Plaintiff U.S. Equal 22 Employment Opportunity Commission (“EEOC”) and Defendants The Bay Clubs 23 Company, LLC, and Bay Clubs Fairbanks Ranch, LLC oppose. (EEOC Opp’n [Doc. 24 131]; Defs’ Opp’n [Doc. 132].) 25 The Court decides the matter on the papers submitted and without oral argument. 26 See Civ. L.R. 7.1(d.1). For the following reasons, the Court DENIES the motion [Doc. 27 120]. 28 1 I. INTRODUCTION 2 This lawsuit stems from a charge of discrimination filed by Charging Party Sidney 3 Scott in August 2016. After investigating her charge and efforts at conciliation failed, on 4 August 8, 2018, Plaintiff EEOC filed this lawsuit to “correct unlawful employment 5 practices based on sex and to provide relief to Charging Party Sidney Scott ... and a class 6 of individuals ... who were adversely affected by such practices.” (Comp. [Doc. 1] 1:26– 7 28.) The Complaint alleged violations of Title VII of the Civil Rights Act of 1964 (“Title 8 VII”) by unlawfully subjecting Scott and the class of similarly aggrieved individuals 9 (collectively, the “Claimants”) to sexual harassment, including a hostile work 10 environment and quid pro quo harassment, because of their sex (female). (Id. 2:6–10.) 11 The Complaint further alleged Defendants violated Title VII by unlawfully subjecting 12 some Claimants to constructive discharge and retaliation. (Id. 2:10–13.) 13 The employment practices at issue occurred at the Fairbanks Ranch Country Club 14 facility, located in Rancho Santa Fe, California. (Compl. ¶ 2.) The original Complaint 15 named Defendants Fairbanks Ranch Country Club, Inc. (“Fairbanks Ranch”), which 16 operated the facility before July 2016, and Bay Club Fairbanks Ranch, LLC (“Bay 17 Club”), which acquired the facility in approximately July 2016. (Id. ¶¶ 4, 5.) The EEOC 18 subsequently filed a First Amended Complaint to add The Bay Clubs Company, LLC 19 (“TBCC”), which owns Defendant Bay Club and owns or operates at least 20 other 20 premier resort-style facilities/clubs. (FAC [Doc. 99] ¶¶ 9, 12.) 21 On February 10, 2021, the parties filed a joint motion to approve a consent decree, 22 which would resolve this litigation. (See Jt. Mot. Approve Consent Decree [Doc. 118].) 23 The same day, Scott filed the pending motion to intervene. (See Mot. Intervene [Doc. 24 120].) 25 Scott seeks to intervene because she contends the EEOC “committed fraud upon 26 the Court by prosecuting and portraying a narrative that is false” because “[i]mportant 27 aspects of the complaint that Charging Party, Sidney Scott made were omitted from 28 litigation.” (Scott Reply [Doc. 141] p. 5.) The “important aspects” omitted from the 1 litigation involve her allegations that she was also subjected to racial discrimination, paid 2 the least amount of the employees, forced to drink alcohol as an “underage” as part of her 3 job, and sexually attacked and harassed by the general manager. (Id. pp. 5–6.) Scott also 4 seeks to prevent the EEOC from paying her less than 60% of any monetary compensation 5 from the pending settlement (Mot. Intervene [Doc. 120] pp. 6–7), and belatedly raises 6 “concerns” with a Consent Decree approved on December 2, 2019. (Scott Reply [Doc. 7 141] p. 10). 8 As discussed below, the evidence establishes Scott either knew or should have 9 known by no later than the Fall of 2019 that the EEOC omitted the “important aspects” of 10 her claim from this lawsuit. Moreover, given the significant amount of litigation that has 11 occurred, allowing Scott to intervene after the parties have agreed to settle the case would 12 prejudice the current parties, dismissed Defendant Fairbanks Ranch and potentially other 13 Claimants. Accordingly, Scott’s motion will be denied. 14 15 A. In August 2016, Scott files a charge of discrimination. 16 In August 2016, Charging Party Scott filed a charge of discrimination with the 17 EEOC and the State of California. (Scott Reply [Doc. 141] p. 6; EEOC Ex. 4 [Doc. 131- 18 7] p. 1.1) On October 6, 2016, the Department of Fair Employment and Housing 19 (“DFEH”) issued a Right to Sue Notice to Scott, confirming the notice “allows you to file 20 a private lawsuit in State Court.” (EEOC Ex. 4 [Doc. 131-7] p. 1.2) 21 On March 9, 2018, the EEOC issued its Determination regarding Scott’s charge of 22 discrimination. (EEOC Ex. 12 [Doc. 131-13].) The letter notified Scott that the EEOC’s 23 investigation found “reasonable cause to believe that Charging Party was subjected to a 24
25 26 1 The EEOC’s exhibits filed in support of its opposition are attached to the EEOC’s Appendix to Exhibits [Doc. 131-4]. 27 2 Scott contends she filed a complaint the Employment Development Department, not DFEH, and 28 1 sexually hostile work environment because of her sex (female), retaliation, and 2 constructively discharged, in violation of Title VII.” (Id. p. 1.) It also notified Scott that 3 “the [EEOC] has determined that there is reasonable cause to believe that a class of 4 employees have been subjected to sexual harassment because of their sex (female), 5 retaliation, and constructively discharged, in violation of Title VII.” (Id.) The letter 6 advised Scott that she would be contacted “in the near future to begin the conciliation 7 process” and explained that when “the Respondent declines to enter into settlement 8 discussions, or when the Commission’s representative for any other reason is unable to 9 secure a settlement acceptable to the Office Director, the Director shall inform the parties 10 in writing.” (Id. p. 2.) The letter omitted any reference to Scott’s claims of racial 11 discrimination or being forced to consume alcohol as an “underage” while working. 12 On June 29, 2018, the EEOC sent Scott a Notice of Conciliation Failure. (EEOC 13 Ex. 13 [Doc. 131-14] p. 1.) In addition to notifying her that “efforts to conciliate” were 14 unsuccessful, the letter informed Scott that the case was referred to the EEOC’s Legal 15 Unit for possible litigation. (Id.) If the EEOC decided not to file a lawsuit, Scott was 16 advised that she “will be issued a Notice of Right to Sue,” entitling her “to sue the 17 Respondent on her own behalf.” (Id.) 18 On July 10, 2018, EEOC attorney Natalie Nardecchia contacted Scott and 19 informed her the EEOC would be filing suit. (Nardecchia Decl. [Doc. 131-2] ¶ 2.3) 20 21 B. The EEOC files this lawsuit and Scott agrees to be the Charging Party. 22 On August 8, 2018, the EEOC filed this lawsuit. (See Comp. [Doc. 1].) 23 Approximately three weeks later, Attorney Nardecchia met with Scott to review the 24 litigation. (Scott Reply [Doc. 141] p. 6; Nardecchia Decl. [Doc. 131-2] ¶ 3.) According 25 to Attorney Nardecchia, among the things discussed was “the fact that this is a class case 26 27 28 1 and the EEOC, as plaintiff, would be seeking relief for all victims of harassment, 2 including but not limited to Ms. Scott.” (Nardecchia Decl. [Doc. 131-2] ¶ 3.) 3 On September 21, 2018, Attorney Nardecchia sent Scott a follow-up letter that 4 reiterated the “lawsuit seeks relief for you as charging party and class members subjected 5 to sexual harassment.” (EEOC Ex. 5 [Doc. 131-8] p. 1.) The letter also stated: 6 Based on our conversations, you have agreed to participate as the charging party for whom the EEOC seeks relief. As the plaintiff in this lawsuit, the 7 EEOC will be representing your interests. The EEOC has final say as to 8 how to conduct the litigation and how and whether to resolve the case through settlement, though the EEOC will, of course, consider what you 9 think is a fair resolution. You have the right to intervene as a separate 10 party in this lawsuit and hire your own separate attorney to decide how to resolve your individual claim which may include additional claims 11 under state law, but you are not required to hire your own attorney. 12 (Id., emphasis added.4) 13 On July 31, 2019, EEOC attorney Connie Liem sent Scott an email notifying her 14 the EEOC had settled with Defendant Fairbanks Ranch. (EEOC Ex. 2 [Doc. 131-6] p.1.) 15 The email reminded Scott that “the EEOC litigates in the public interest to eliminate 16 employment discrimination and seek relief for victims of discrimination. The EEOC 17 filed this instant class action lawsuit on behalf of you, a class of other similarly-situated 18 individuals, and the public interest.” (Id., emphasis added.) Scott was also advised 19 that “[i]n addition to you, three other female claimants/class members have come forward 20 alleging that they were also subjected to sexual harassment while employed at Fairbanks 21 Ranch.” (Id.) 22 On August 2, 2019, Attorney Liem sent Scott a letter confirming the information in 23 the July 31, 2019 email. (EEOC Ex. 6 [Doc. 131-9] p. 1.) Eleven days later, the EEOC 24 met with Scott regarding the Fairbanks Ranch settlement. (Liem Decl. [Doc. 131-3] ¶ 4; 25 26
27 4 Scott states she “has never seen or been presented with a right to intervene letter as alleged.” (Scott 28 1 Park Decl. [Doc. 131-1] ¶ 4.) During the meeting, the EEOC again informed Scott that it 2 was litigating on behalf of the public interest and was seeking class relief. (Id.) 3 4 C. The Court approves the Fairbanks Ranch Consent Decree and a year 5 later the EEOC and remaining Defendants file a notice of settlement. 6 On or about November 19, 2019, the EEOC and Defendant Fairbanks Ranch filed 7 a notice of settlement and motion to approve a consent decree. (Jt. Mot. to Approve 8 Fairbanks Ranch Consent Decree [Doc. 62].) On November 27, 2019, this Court granted 9 the joint motion and approved the consent decree. (Fairbanks Ranch Consent Decree 10 [Doc. 64].) Under the terms of the settlement, Fairbanks Ranch agreed to pay $125,000 11 in monetary compensation. (Id.) 12 According to Scott, initially she was to receive $50,000 of the settlement proceeds. 13 (Scott Reply [Doc. 141] p. 10.) Unhappy with her allocation, Scott contacted EEOC 14 Regional Attorney Anna Park, and a conference call was scheduled for December 12, 15 2019. (Id. p. 11.) During the call, Scott “explained her concerns” and the EEOC 16 attorneys reiterated the lawsuit was brought on behalf of the public and sought class 17 relief. (Id.; Liem Decl. [Doc. 131-3] ¶ 4; Park Decl. [Doc. 131-1] ¶ 4.) “Subsequently,” 18 Scott negotiated “a settlement of sixty percent ($75,000) … with the promise of receiving 19 a lot more to keep ‘the girls engaged.’” (Scott Reply [Doc. 141] p. 11.) 20 In February 2020, the EEOC invited Scott to participate in an upcoming mediation 21 with Bay Club. (Liem Decl. [Doc. 131-3] ¶ 6). Scott declined to attend. (Id.) 22 On March 4, 2020, the parties participated in a full-day private mediation with the 23 Honorable Leo S. Papas, U.S. Magistrate Judge (Ret.). (Jt. Notice Settle. [Doc. 113] 1:6– 24 7.) After the mediation, the parties continued to engage in settlement discussions, and on 25 October 13, 2020, filed a notice of settlement with all parties. (Id.) 26 In December 2020, Scott was informed that a settlement had been reached. (Scott 27 Reply [Doc. 141] pp. 12–13.) On December 28, 2020, Scott sent an email to EEOC 28 Regional Attorney Park (copied to Attorney Liem) regarding concerns she had with the 1 case and Attorney Liem. (Scott Reply [Doc. 141] Ex. A.) In the email, Scott took issue 2 with Attorney Liem’s statement that Scott should not receive 60% of the settlement 3 allocation and asserted as “a charging party, I am claiming no less than the agreed-upon 4 60 percent of the total settlement amount as I did in the initial settlement with Fairbanks 5 Ranch, including back pay, compensatory damages, and punitive damages.” (Id.) 6 On January 14, 2021, a conference call was scheduled between Scott, her parents 7 and Attorney Park. (Scott Reply [Doc. 141] p. 13; Park Decl. [Doc. 131-1] ¶ 5.) During 8 the call, Scott raised concerns regarding “the relevant details of the case and the 9 settlement information” and “the continuation of 60% in the upcoming final settlement.” 10 (Scott Reply [Doc. 141] p. 13.) At that time, Scott was advised there were 20 more 11 Claimants. (Id.) Attorney Park also stated that Scott’s prior settlement of $75,000 would 12 be deducted from the current settlement. (Id.) After the meeting, Park sent Scott a letter 13 memorializing the meeting. (Park Decl. [Doc. 131-1] ¶ 5.) 14 On February 10, 2021, the EEOC, TBCC and Bay Club filed a Joint Motion to 15 Approve Consent Decree and Order. (See Jt. Motion Approve Consent Decree [Doc. 16 118].) The same day, Scott filed the pending motion to intervene. In the moving papers, 17 Scott asserts she “recently learned (her) interest will not be protected in this action” and 18 appears to request the EEOC be estopped from reneging on its alleged earlier “promise” 19 that she receive 60% of the settlement. (Mot. Intervene [Doc. 120] pp. 2, 4, 6–7.) In her 20 reply, Scott justifies her delay in moving to intervene by asserting she only recently 21 discovered the EEOC omitted “important aspects” of her administrative complaint from 22 this lawsuit and only recently was informed of her right to intervene. (Scott Reply [Doc. 23 141] p. 5.) 24 25 II. LEGAL STANDARD 26 “Intervention is governed by Fed.R.Civ.P. 24, which permits two types of 27 intervention: intervention as of right and permissive intervention.” Nw. Forest Res. 28 1 Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996). The Ninth Circuit applies a four- 2 prong test in evaluating intervention as of right: 3 (1) the application for intervention must be timely; (2) the applicant must have a ‘significant protectable’ interest relating to the property or transaction 4 that is the subject of the action; (3) the applicant must be so situated that the 5 disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest 6 must not be adequately represented by the existing parties in the lawsuit. 7 8 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817–18 (9th Cir. 2001). For 9 permissive intervention, the proposed intervenor must demonstrate: (1) the motion is 10 timely; (2) there is an independent basis for jurisdiction; and (3) the intervenor’s claim or 11 defense shares a question of law or fact with the main action. League of United Latin 12 American Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1996). 13 Timeliness is a threshold requirement for intervention as of right and permissive. 14 United States v. Washington, 86 F.32d 1499, 1503, 1507 (9th Cir. 1996). “In other 15 words, if we find ‘that the motion to intervene was not timely, [we] need not reach any of 16 the remaining elements of Rule 24.’” Wilson, 131 F.3d at 1302 (quoting Washington, 86 17 F.3d at 1503). Courts in the Ninth Circuit “must bear in mind” that “any substantial lapse 18 of time weighs heavily against intervention.” Id. 19 The proposed intervenor “bears the burden of showing that all the requirements for 20 intervention have been met.” United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th 21 Cir, 2004). However, courts generally construe the requirements broadly in favor of 22 intervention. United States v. City of L.A., 288 F.3d 391, 397-98 (9th Cir. 2002); Lee v. 23 Pep Boys-Manny Moe & Jack of California, 2016 WL 324015, *2 (N.D. Cal. 2016) (“For 24 both as-of-right and permissive intervention, courts generally construe Rule 24 liberally 25 in favor of intervention.”). 26 Though Title VII expressly provides an aggrieved employee with a right to 27 intervene, the intervention request must still be timely. See 42 U.S.C. § 2000e-5(f)(1). 28 1 III. ANALYSIS 2 A. Timeliness 3 The Ninth Circuit considers three criteria in determining whether a motion to 4 intervene is timely: “(1) the stage of the proceeding at which an applicant seeks to 5 intervene; (2) the prejudice to other parties; and (3) the reason for and the length of the 6 delay.” Wilson, 131 F.3d at 1302 (citing County of Orange v. Air California, 799 F.2d 7 535, 537 (9th Cir. 1986)). “In considering these factors, however, we must bear in mind 8 that ‘any substantial lapse of time weighs heavily against intervention.’” Id. (citing 9 Washington, 86 F.3d at 1503). Because timeliness is the threshold requirement, the court 10 need not reach any other issue if it finds the motion was not timely. Wilson, 131 F.3d at 11 1302. 12 13 1. Stage of the proceeding. 14 Scott could not be seeking to intervene at a later stage in the litigation. The lawsuit 15 was filed in August 2018. Since then, the parties have vigorously litigated the matter and 16 are on the eve of settlement. 17 The lawsuit has been vigorously contested by both sides. Immediately after being 18 served with the Complaint, Defendant Bay Club filed a motion to dismiss, challenging 19 subject matter jurisdiction and arguing the EEOC failed to state a claim for harassment, 20 retaliation and constructive discharge. (Notice of MTD [Doc. 7] 2:7–13.) The parties 21 have also filed motions to disqualify each other’s attorneys [Docs. 40, 66] and, based on 22 information obtained during discovery, the EEOC eventually filed the motion to amend 23 the complaint [Doc. 91] to add TBCC to the litigation. 24 The parties have also expended significant resources and time in aggressively 25 pursuing and opposing discovery. This is reflected by the parties’ motions to compel 26 production of documents [Docs. 38, 56], motion for sanctions [Doc. 56] and motion to 27 quash [Doc. 70]. The parties’ aggressive discovery efforts are also reflected in the 28 numerous discovery-dispute hearings in front of Magistrate Judge Schopler on July 18, 1 2019 [Doc. 35], August 8, 2019 [Doc. 43], September 4, 2019 [Doc. 50], December 18, 2 2019 [Doc. 67], January 15, 2020 [Doc. 73], January 17, 2020 [Doc. 79], January 30, 3 2020 [Doc. 88], February 13, 2020 [Doc. 92], and September 22, 2020 [Doc. 110]. 4 In addition to their efforts in litigating and conducting discovery regarding the 5 issues raised in the EEOC’s complaints, the parties have also spent a considerable amount 6 of time negotiating a resolution of this case. The Fairbanks Ranch Consent Decree not 7 only resulted in $125,000 in monetary relief for the Claimants, but in significant 8 injunctive relief. (Fairbanks Consent Decree [Doc. 64] §§ VII.A–B, IX–X.) The 9 proposed consent decree filed by the remaining parties and now pending would resolve 10 the remaining claims, and is the result of the parties’ participation in a March 2020 11 private mediation before the Honorable Leo S. Papas, U.S. Magistrate Judge (Ret.), and 12 continued negotiations until approximately October 2020. (Jt. Notice Settle. [Doc. 113] 13 3:6–10.) 14 In short, the record confirms that by the time Scott filed her motion, “a lot of water 15 had already passed underneath [this] litigation bridge.” Wilson, 131 F.3d at 1303. 16 Accordingly, the Court finds this factor weighs heavily in favor of finding Scott’s motion 17 to intervene is untimely. 18 19 2. Prejudice to the parties. 20 The Ninth Circuit has held that “prejudice to existing parties is ‘the most important 21 consideration in deciding whether a motion for intervention is untimely.’ [Citation 22 omitted.]” Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 857 (9th Cir. 2016). 23 Here, Scott contends she should be allowed to intervene because the EEOC omitted 24 from this lawsuit her claims regarding racial discrimination, being forced to drink alcohol 25 as an “underage,” and being sexually attacked and harassed by the general manager. 26 (Scott Reply [Doc. 141] pp. 5–6.) She also raises “concerns” with the Fairbanks Ranch 27 Consent Decree. (Id. pp. 10–11.) Accordingly, if allowed to intervene, Scott would seek 28 1 to litigate the issues the EEOC omitted from the case (id. pp. 18, 23–25) and object to the 2 Fairbanks Ranch Consent Decree (Mot. Intervene [Doc. 120] pp. 6–7). 3 The EEOC contends allowing Scott to intervene would prejudice the current parties, 4 Fairbanks Ranch, and the other Claimants. (EEOC Opp’n [Doc. 131] 11:18–12:24.) The 5 Court agrees with the EEOC. 6 “[A]s a general rule, intervenors are permitted to litigate fully once admitted to a 7 suit.” Wilson, 131 F.3d at 1304. The “inevitable effect” is “prolonging of the litigation 8 to some degree.” Id. 9 Here, allowing Scott to intervene in order to raise new claims would require 10 reopening discovery, and prolong a case that has been litigated since 2018 and is on the 11 verge of settlement. Not only would the parties be required to expend additional time and 12 resources to reengage in discovery and potentially motion practice, but the time and 13 resources spent mediating the case before Judge Papas and negotiating a potential 14 resolution would effectively be nullified. In short, allowing Scott to intervene would 15 prejudice the parties. 16 In addition to the parties, Scott’s intervention would delay the ability of the other 17 victims of sexual harassment—on whose behalf this lawsuit was brought—to receive 18 compensation for their injuries. Thus, Scott’s intervention would prejudice the other 19 Claimants. 20 Finally, allowing Scott to intervene in order to object to the Fairbanks Ranch 21 Consent Decree would prejudice Defendant Fairbanks Ranch, who has already been 22 dismissed and ceased litigating. Moreover, the other Claimants who received monetary 23 compensation from the settlement in approximately December 2019 could also suffer 24 prejudice. 25 For all these reasons, the Court finds this factor weighs heavily in favor of finding 26 Scott’s motion to intervene is untimely. See Aleut Corp. v. Tyonek Native Corp., 725 27 F.2d 527, 530 (9th Cir. 1984) (affirming district court’s finding of prejudice where 28 intervention sought “on the eve of settlement following several years of litigation.”). 1 3. Reason for and length of delay. 2 A party “seeking to intervene must act as soon as he ‘knows or has reason to know 3 that his interests might be adversely affected by the outcome of the litigation.’” Lee, 4 2016 WL 324015, *7 (quoting Peruta v. City of San Diego, 771 F.3d 570, 572 (9th Cir. 5 2014). “Delay is measured from the date the proposed intervenor should have been 6 aware that its interests would no longer be protected adequately by the parties, not the 7 date it learned of the litigation.” Id. (quoting Washington, 86 F.3d at 1503) (emphasis 8 added). 9 Here, Scott contends she moved to intervene as soon as she learned the EEOC did 10 not represent her interests. (Scott Reply [Doc. 141] p. 24.) According to Scott, the EEOC 11 does not represent her interests because it is “prosecuting and portraying a [false] 12 narrative” by omitting “important aspects” of her administrative claim from this case, 13 such as the racial discrimination she endured. (Id. pp. 5–6, 18, 23–24.) Scott’s argument 14 is unpersuasive for a number of reasons. 15 Even before the lawsuit was filed, Scott knew or should have known the EEOC 16 was not pursuing the “important aspects” of her administrative complaint. On March 9, 17 2018, the EEOC issued its Determination regarding the merits of her administrative 18 complaint. The letter stated: 19 Charging Party alleges she was subjected to a sexually hostile work environment because of her sex (female) and intimidated in retaliation for 20 turning down her supervisor’s sexual advances, resulting in her constructive 21 discharge, in violation of Title VII.
22 Respondent denies Charging Party’s allegations. 23 The [EEOC] finds there is reasonable cause to believe that Charging Party 24 was subjected to a sexually hostile work environment because of her sex 25 (female), retaliation, and constructively discharged, in violation of Title VII.
26 As a like and related issue, the [EEOC] has determined that there is 27 reasonable cause to believe that a class of employees have been subjected to 28 1 sexual harassment because of their sex (female), retaliation, and constructively discharged, in violation of Title VII. 2
3 (EEOC Ex. 12 [Doc. 131-13] p. 1.5) Because the letter does not mention racial 4 discrimination or any of the other “important aspects” Scott alleges were raised in her 5 administrative claim, she knew or should have known the EEOC was only pursing the 6 sexual harassment claim. 7 In addition to the EEOC’s Determination letter, the Complaint has been on the 8 public docket since this lawsuit was filed in August 2018 (Compl. [Doc. 1]) and the First 9 Amended Complaint has been on the docket since August 5, 2020 (FAC [Doc. 99]). 10 Aside from the addition of Defendant TBCC in the First Amended Complaint, the causes 11 of action have not changed and focus solely on sexual harassment, not racial 12 discrimination or any of the other “important aspects” of her administrative complaint. 13 (See id.) Thus, the complaints also should have alerted Scott that the EEOC was 14 purportedly not representing her interests in the case. 15 The Court recognizes Scott contends she was unaware of this lawsuit until July 31, 16 2019—a year after the lawsuit was filed—when she was subpoenaed for her deposition. 17 (Scott Reply [Doc. 141] p.6.) Assuming for the sake of argument that her contention was 18 credible, it would only justify her failure to file the motion until approximately August 19 2019.6 In other words, once she learned the lawsuit was filed, it was no longer 20
21 22 5 While Scott alleges she did not receive other communications from the EEOC, she does not deny receiving the March 9, 2018 Determination. (See Scott Affidavit [Doc. 141].) 23 6 Scott’s contention that she was unaware of this lawsuit until approximately August of 2019 is difficult 24 to reconcile with the evidence. She admits that on or about June 29, 2018, the EEOC informed her that 25 conciliation efforts failed. (Mot. Intervene [Doc. 120] p. 5.) The EEOC’s Notice of Conciliation Failure specifically advised Scott that “the case has been referred to our Legal Unit for possible litigation,” and 26 stated if the EEOC decided not to file a lawsuit, she “will be issued a Notice of Right to Sue….” (Id.) According to Attorney Nardecchia, on July 10, 2018, she informed Scott that the EEOC would be filing 27 suit. (Nardecchia Decl. [Doc. 131-2] ¶ 2.) Then on August 31—approximately 3 weeks after the lawsuit was filed—Scott admits she met with Attorney Nardecchia in the EEOC’s Los Angeles office. 28 1 reasonable for her to assert she was not aware of the claims the EEOC was pursing on her 2 behalf, as well as the other Claimants. This is particularly true in light of her admission 3 that during the August 2019 deposition, she testified “she did not trust the EEOC.” (Scott 4 Reply [Doc 141] p. 9.) Moreover, in November 2019—after Scott admittedly discovered 5 the lawsuit was filed and testified that she did not trust the EEOC—this Court approved 6 the Fairbanks Ranch Consent Decree, which again reiterated the claims the EEOC was 7 pursing in this case: 8 On August 8, 2018, EEOC filed this action in the United States District Court for the Southern District of California in US. Equal Employment 9 Opportunity Commission v. Bay Club Fairbanks Ranch, LLC d/b/a 10 Fairbanks Ranch Country Club, Fairbanks Ranch Country Club, Inc., and Does 1-10, inclusive, Case No. 18cvl853-W-AGS for violations of Title VII 11 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 12 ("Title VII"). The action alleges that Defendants violated Title VII by unlawfully subjecting Charging Party Sidney Scott and a class of similarly 13 aggrieved individuals ("Claimants") to sexual harassment, including a 14 hostile work environment and quid pro quo harassment, because of their sex (female). The action further alleges that Defendants violated Title 15 VII by unlawfully subjecting some Claimants to constructive discharge 16 and retaliation. FRCCI denies liability and contends that it did not violate the law because, at the time of all events alleged in the Complaint, it did not 17 exercise control as an employer; both contractually and in fact, FRCCI was 18 precluded by Defendant Bay Club from exercising any control over the workplace at Fairbanks Ranch Country Club after April 30, 2015. 19
21 22 declares they discussed the litigation. (Nardecchia Decl. [Doc. 131-2] ¶ 3.) Then on September 21, 2018, Attorney Nardecchia sent a follow-up letter confirming Scott agreed to participate as the charging 23 party and advising her of the right to intervene. (EEOC Ex. 5 [Doc. 131-8] p. 1.)
24 While Scott denies receiving Nardecchia’s July 10 and September 21 communications, it strains the 25 imagination to believe Nardecchia never mentioned the lawsuit during the August 31 meeting. Moreover, even assuming Nardecchia somehow failed to mention the lawsuit, the EEOC’s Notice of 26 Conciliation Failure advised Scott that “[i]f the EEOC decides that it will not bring a civil action” she would receive a Notice of Right to Sue. Scott admits she never received a Notice of Right to Sue from 27 the EEOC. (Scott Affidavit [Doc. 141] ¶ 6.) Thus, she should have known the EEOC had filed suit at some point after meeting with EEOC Attorney Nardecchia. 28 1 || Fairbanks Consent Decree [Doc. 64] 2:7—20, emphasis added.) In short, by no later than 2 || December 2019, Scott knew or should have known that “important aspects” of her claim 3 || were omitted from the litigation and, thus, her interests were allegedly not being 4 || represented by the EEOC.’ 5 For all these reasons, the Court finds this factor weighs heavily in favor of finding 6 || Scott’s motion to intervene was not timely. 7 8 CONCLUSION & ORDER 9 For the reasons set forth above, the Court find Scott’s motion to intervene was not 10 || timely and, therefore, DENIES the motion in its entirety [Doc. 120]. 1] IT IS SO ORDERED. 12 ||Dated: March 19, 2021 \ 13 fish ue Lerr 14 Hn. 1 omas J. Whelan 15 United States District Judge 16 17 18 || ————_______—_—__- 20 Scott also contends the EEOC did not tell her about the right to intervene until after December 18, 91 || 2020. (Scott Affidavit [Doc. 141] J 20.) Her statement is contrary to the evidence. On September 21, 2018, the EEOC sent Scott a letter following-up on their August 31, 2018 meeting. (EEOC Ex. 5 [Doc. 22 || 131-8] p.1.) The letter explicitly advised Scott that “[y]ou have the right to intervene as a separate party in this lawsuit and hire your own separate attorney to decide how to resolve your individual claim....” 23 Ud.) Notably, the letter was mailed to the same address as the August 2, 2019 letter notifying her of the monetary settlement with Fairbanks Ranch, which Scott does not dispute receiving. (Compare EEOC Ex. 6 [Doc. 131-9] and EEOC Ex. 5 [Doc. 131-8].) Under the mailbox rule, the Court finds the EEOC 25 || notified Scott of her right to intervene in September 2018. See Schikore v. BankAmerica Supplemental Retirement Plan, 269 F.3d 956, 961 (9th Cir. 2001) (explaining that the mailbox rule creates a 26 || “rebuttable presumption that the document has been received by the addressee in the usual time.”) Nevertheless, regardless of whether Scott was notified of her right to intervene in September 2018, for 27 || the reasons discussed in this section, the Court finds she should have known the EEOC allegedly did not 28 represent her interests by December 2019.