1997 U.S. Dist. LEXIS 7923, *; 155 L.R.R.M. 2954;
73 Fair Empl. Prac. Cas. (BNA) 1308

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff -vs- LOCAL 310 LABORERS' INT'L UNION OF NORTH AMERICA, et al., Defendants

CASE NO. 1:96 CV 1293

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

1997 U.S. Dist. LEXIS 7923; 155 L.R.R.M. 2954; 73 Fair Empl. Prac. Cas. (BNA) 1308

  
March 3, 1997, FILED

DISPOSITION:  [*1]  Lia and Beichler's motions to intervene and Beichler's motion to amend her complaint in intervention granted. LIUNA's motion to strike and LIUNA's motion to stay denied.

CORE TERMS: motion to intervene, collective bargaining agreement, state law, motion to strike, intentional infliction of emotional distress, intervene, crossclaim, supplemental jurisdiction, motion to dismiss, right to intervene, sexual harassment, preempted, motion to amend, original jurisdiction, Civil Rights Act, Relations Act, infliction of emotional distress, procedural defect, civil action, filed suit, retaliatory, intervenor, preemption, rectified, asserting, harassed, opposes, motion to stay, order staying, amend

COUNSEL: For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, plaintiff: Donna L. Williams-Alexander, Esq., Cleveland Dist. Off., Jeffrey Alan Stern, Esq., Equal Employment Opportunity Commission, Cleveland, OH. Dennis J. Niermann, Esq., Kramer & Nierman, Cleveland, OH.
 
For LOCAL 310 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, defendant: Susan L. Gragel, Esq., Jennifer E. Schwartz, Esq., Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH. For BAKER CONCRETE CONSTRUCTION, INC., defendant: Sue Marie Douglas, Esq., Lisa A. Kainec, Esq., Millisor & Nobil, Cleveland, OH.
 
For AMY BEICHLER, intervenor-plaintiff: Dennis J. Niermann, Esq., Kramer & Nierman, Cleveland, OH. For JACQUELINE LIA, intervenor-plaintiff: Avery S. Friedman, Esq., Friedman & Associates, Cleveland, OH.
 
For LOCAL 310 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, cross-claimant: Susan L. Gragel, Esq., Jennifer E. Schwartz, Esq., Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH.
 
For BAKER CONCRETE CONSTRUCTION, INC., cross-defendant: Sue Marie  [*2]  Douglas, Esq., Lisa A. Kainec, Esq., Millisor & Nobil, Cleveland, OH.
 
For LOCAL 310 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, cross-claimant: Susan L. Gragel, Esq., Jennifer E. Schwartz, Esq., Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH.
 
For BAKER CONCRETE CONSTRUCTION, INC., cross-defendant: Sue Marie Douglas, Esq., Lisa A. Kainec, Esq., Millisor & Nobil, Cleveland, OH.
 
For LOCAL 310 LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, cross-claimant: Susan L. Gragel, Esq., Jennifer E. Schwartz, Esq., Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH.
 
For BAKER CONCRETE CONSTRUCTION, INC., cross-defendant: Sue Marie Douglas, Esq., Lisa A. Kainec, Esq., Millisor & Nobil, Cleveland, OH.

JUDGES: Lesley Brooks Wells, UNITED STATES DISTRICT JUDGE

OPINIONBY: Lesley Brooks Wells

OPINION: MEMORANDUM OF OPINION AND ORDER GRANTING BEICHLER AND LIA'S MOTIONS TO INTERVENE, DENYING LIUNA'S MOTION TO STRIKE, GRANTING BEICHLER'S MOTION TO AMEND COMPLAINT AND DENYING LIUNA'S MOTION TO STAY

I. Introduction

This case is before the Court on the following motions: (1) motion to intervene filed by Amy Beichler (Docket no. 3); (2) motion to intervene filed by Jacqueline Lia (Docket no.  [*3]  4); (3) motion to strike filed by defendant Local 310 Laborers' Int'l Union of North America ("LIUNA") (Docket no. 11); (4) motion to dismiss LIUNA's crossclaim filed by defendant Baker Concrete, Inc. ("Baker") (Docket no. 17); (5) Beichler's motion to amend complaint in intervention (Docket no. 22); and (6) LIUNA's motion for an order staying the determination of the viability of its crossclaim (Docket no. 30).

No opposition has been filed to Beichler's motion to amend her complaint, filed September 16, 1996, and it will be granted. A decision on Beichler's motion to intervene which follows renders moot LIUNA's motion to stay and it will be denied. Baker shall have ten (10) days from the date of this order to amend its motion to dismiss. A decision on Baker's motion to dismiss is reserved until the parties have had an opportunity to respond.

For the reasons which follow, the motions to intervene should be granted and the motion to strike should be denied.

II. Procedural History and Background

Plaintiff Equal Employment Opportunity Commission ("EEOC") filed suit against LIUNA and Baker on June 14, 1996, alleging that LIUNA and Baker through their agents engaged in unlawful  [*4]  employment practices at the Rock and Roll Hall of Fame and Museum construction site, Cleveland, Ohio, by sexually harassing Lia and Beichler, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a), (c). The EEOC further alleged that Beichler was harassed, retaliated against, and later terminated for her opposition to sexual harassment and for her participation in Lia's Title VII proceedings, in violation of 42 U.S.C. § 2000e-3(a).

On the same day the EEOC filed suit, Beichler filed a motion to intervene with complaint attached and Lia filed a separate motion to intervene.

Baker filed an answer on July 11, 1996. LIUNA filed a separate answer on July 31, 1996, which asserted a crossclaim against Baker, seeking indemnification. Along with its answer, LIUNA filed a motion to strike two allegations from Beichler's complaint.

Baker filed a motion to dismiss LIUNA's crossclaim on August 13, 1996. LIUNA filed a motion for an order staying the determination of the viability of its crossclaim against Baker on September 30, 1996.

The parties have filed generous responsive briefs to each pending motion.

III. Legal Analysis
 
A. Lia's Motion to  [*5]  Intervene

Lia seeks intervention as of right under Fed. R. Civ. P. 24(a) n1 and 42 U.S.C. § 2000e-5(f)(1) n2. LIUNA opposes Lia's motion to intervene, contending the motion is procedurally defective because it was not "accompanied by a pleading setting forth the claim or defense for which intervention is sought," as required by Fed. R. Civ. P.24(c). Neither the EEOC nor Baker objects to Lia's motion to intervene.
 
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n1 Fed. R. Civ. P. 24(a) states:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.


n2 42 U.S.C. § 2000e-5(f)(1) states in part: "The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission. . . ."
 
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The failure to strictly comply with Rule 24(c) does not defeat intervention where the failure is nonprejudicial. See Spring Constr. Co., Inc. v. Harris, 614 F.2d 374, 376-77 (4th Cir. 1980). Accord Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 474 (9th Cir.), cert. denied, 506 U.S. 868 (1992). In Spring, the Fourth Circuit determined that the proposed intervenor's failure to comply with Rule 24(c) by not attaching a pleading with its motion to intervene was not dispositive. Spring, 614 F.2d at 377. The court was persuaded by the fact that the proposed intervenor had rectified the procedural defect by later filing an amended complaint. Id.

In this case, Lia's motion to intervene was filed on June 14, 1996, on the same day that the EEOC commenced this action. LIUNA did not respond to Lia's motion until July 31, 1996. On September 16, 1996, after receiving an extension of time to respond, Lia filed a reply to LIUNA's opposition brief, to which she attached a complaint. This attachment timely rectified the procedural defect under Rule 24(c), the basis on which LIUNA had objected to Lia's motion to intervene. LIUNA has not demonstrated that it was  [*7]  prejudiced by this delay in either its opposition brief or in its brief filed September 26, 1996.

Lia has satisfied the standards for intervention as of right under Rule 24 and 42 U.S.C. § 2000e-5(f)(1). Therefore, Lia's motion to intervene will be granted.
 
B. Beichler's Motion to Intervene

Beichler also seeks intervention as of right under Fed. R. Civ. P. 24(a) and 42 U.S.C. § 2000e-5(f)(1). In its first response to Beichler's motion to intervene, LIUNA opposed her intervention. LIUNA now recognizes Beichler's right to intervene n3 under Fed. R. Civ. P. 24(a) and 42 U.S.C. § 2000e-5(f)(1), but seeks to limit the scope of her intervention. n4 Again, neither the EEOC nor Baker opposes Beichler's motion.
 
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n3 LIUNA, in fact, denies ever contesting Beichler's right to intervene. (Docket no. 25, p. 6.)

n4 Many of LIUNA's objections to Beichler's motion to intervene are no longer relevant due to Beichler's filing of an amended complaint which eliminated claims for negligent infliction of emotional distress and negligent hiring, retention and supervision. Beichler's amended complaint states the following claims: (1) discrimination on the basis of sex, sexual harassment, and retaliatory discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.; (2) sexual harassment and retaliatory discrimination in violation of Ohio Rev. Code Ann. § 4112.99; and (3) intentional infliction of emotional distress under Ohio law.
 
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To support limiting the scope of Beichler's intervention, LIUNA argues Beichler's claim for intentional infliction of emotional distress is preempted by section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a), and that the Court should decline to exercise supplemental jurisdiction, 28 U.S.C. § 1367 n5, over Beichler's state law claims.
 
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n5 28 U.S.C. § 1367 states in part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

* * *
 
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if--

(1) the claim raises a novel or complex issue of State law,
 
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction. . . .
 
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LIUNA first argues Beichler's claim of intentional infliction of emotional distress is preempted by Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185(a). The Sixth Circuit has established a two-step procedure for determining the validity of this argument:

First, the district court must examine whether proof of the state law claim requires interpretation of collective bargaining agreement terms. Second, the court must ascertain whether the right claimed by the plaintiff is created by the collective bargaining agreement or by state law. If the right both is borne of state law and does not invoke contract interpretation, then there is no preemption. However, if neither or only one criterion is satisfied, section 301 preemption is warranted.
 
DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994)(citing Terwilliger v. Greyhound Lines, Inc., 882 F.2d 1033, 1037 (6th Cir. 1989), cert. denied, 495 U.S. 946, 109 L. Ed. 2d 531, 110 S. Ct. 2204 (1990)).

LIUNA argues that proof of intentional infliction of emotional distress in this case would require the Court to interpret the collective bargaining agreement, asserting that if defendants'  [*10]  conduct complied with the collective bargaining agreement, it could not be characterized as "extreme and outrageous", a required element of the tort of intentional infliction of emotional distress. n6 See Phung v. Waste Management, Inc., 71 Ohio St. 3d 408, 410, 644 N.E.2d 286 (1994).
 
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n6 LIUNA refers to section 17 of the collective bargaining agreement which sets forth a union steward's duties.
 
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LIUNA does not dispute the fact that Beichler is asserting intentional infliction of emotional distress under state law, which satisfies the second part of the procedural framework. Furthermore, LIUNA has not established that interpretation of the collective bargaining agreement is required to adjudicate Beichler's claim for intentional infliction of emotional distress. Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473, 1483 (6th Cir. 1990) (holding "whether Pepsi harassed Knafel so outrageously as to cause her emotional distress and physical injury is a question that the district court can decide without  [*11]  interpreting the collective bargaining agreement"). See also Pearsall v. Chrysler Corp., 1996 U.S. App. LEXIS 2794, No. 94-3775, *19-22 (6th Cir. February 2, 1996) (unpublished). Therefore, Beichler's claim is not preempted by section 301 under the framework established by the Sixth Circuit.

Second, while LIUNA admits that the Court may exercise supplemental jurisdiction over Beichler's state law claims under 28 U.S.C. § 1367(a), LIUNA argues the Court should decline the exercise of such jurisdiction under 28 U.S.C. § 1367(c).

To support this argument, LIUNA argues the EEOC's Title VII claims' novel and complex nature should preclude supplemental jurisdiction over Beichler's state law claims. LIUNA further argues that Beichler's state law claims will predominate over the federal claims asserted. LIUNA has not established either of these contentions.

LIUNA's arguments to limit the scope of Beichler's intervention lack merit. Therefore, Beichler's motion to intervene will be granted, without restrictions.
 
C. LIUNA's Motion to Strike

LIUNA's motion to strike requests the following allegations be stricken:

1. "Defendants were working with federal contractors under Executive Orders  [*12]  11246 and 11375." (Beichler Cmpl. P 1.14; Beichler Am. Cmpl. P 1.61.)
 
2. "Beichler also had been told by other Local 310 laborers that Zip Liberatore's uncle, Tony Liberatore, had been involved in the murder of well known organized crime figure, Danny Greene." (Beichler Cmpl. P 1.39; Beichler Am. Cmpl. P 1.41.)
 
LIUNA brings this motion under Fed. R. Civ. P. 12(f) n7, arguing that the first allegation is "immaterial" and the second is "scandalous."
 
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n7 Fed. R. Civ. P. 12(f) states in pertinent part: "Upon motion made by a party before responding to a pleading . . . the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."
 
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The Sixth Circuit has established that "the action of striking a pleading. . . is a drastic remedy. . . . The motion to strike should be granted only when the pleading to be striken [sic] has no possible relation to the controversy." Brown & Williamson Tobacco Co. v. United States, 201 F.2d 819,  [*13]  822 (6th Cir. 1953)(citations omitted).

LIUNA has not established that the allegations listed above have "no possible relation to the controversy" between the parties. Therefore, LIUNA's motion to strike will be denied.

IV. Conclusion

For the foregoing reasons, the Court grants Lia and Beichler's motions to intervene and Beichler's motion to amend her complaint in intervention. The Court denies LIUNA's motion to strike and LIUNA's motion to stay. Baker shall have ten (10) days from the date of this order to amend its motion to dismiss LIUNA's crossclaim.

IT IS SO ORDERED.

Lesley Brooks Wells

UNITED STATES DISTRICT JUDGE