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EQUAL EMPLOYMENT OPPERTUNITY COMMISSION v. DAN LEPORE & SONS

January 29, 2004.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
DAN LEPORE & SONS COMPANY and L.F. DRISCOLL COMPANY, Defendants



The opinion of the court was delivered by: LEGROME DAVIS, District Judge

MEMORANDUM ORDER

Presently before the Court is the Amended Motion to Intervene as Party Plaintiff Filed by Beth Anne Burroughs Pursuant to F.R.C.P. 24(a) (Dkt. No. 19). For the reasons that follow, Plaintiff's motion is GRANTED in part, and DENIED in part.

I. Factual Background and Procedural History

  In 2003, Beth Anne Burroughs ("Burroughs") filed charges of discrimination with the Equal Employment Opportunity Commission (the "EEOC" or the "Commission"). (Compl. ¶ 6). On September 30, 2003, more than thirty days after Burroughs filed her charges of discrimination, the EEOC filed the instant action pursuant to Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 alleging unlawful gender biased employment practices and retaliation. (See generally Compl.). The Commission alleges that the charging party, Beth Anne Burroughs ("Burroughs") was sexually harrassed by Defendant Dan Lepore & Sons Company's ("Lepore") foreman and male co-workers on two separate construction sites. The Commission also alleges that Burroughs was also subjected to disparate Page 2 treatment as a consequence of her gender when she was evicted by the general contractor, Defendant L.F. Driscoll Company ("Driscoll," Lepore and Driscoll collectively identified as "Defendants"), from the job site because she was not wearing safety glasses. Male employees who also failed to wear safety glasses and hard hats were not similarly evicted. (Id.) The Commission further alleges that, in retaliation for reporting the sexual harassment to Driscoll, Burroughs was not hired for future projects.

  On October 10, 2003, pursuant to Federal Rule of Civil Procedure 24(a), Burroughs's filed a Motion to Intervene As Party Plaintiff. (Dkt. No. 2). On November 6, 2003, Burroughs filed an Amended Motion to Intervene As Party Plaintiff, adding an antitrust claim under the Clayton Act. (Dkt. No. 6). In her amended motion, Burroughs seeks to assert the following claims: (1) federal antitrust violations under the Sherman Act and the Clayton Act; (2) a state law claim for gender discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"); and (3) violations of Article I § 28 of the Pennsylvania Constitution, which is commonly identified as the Pennsylvania Equal Rights Amendment ("PERA").

  Burroughs asserts that her claims arise from the same operative facts as the claims asserted by the EEOC, and that to grant the motion to intervene would further the important interest of judicial economy. While the EEOC is amenable to intervention, Defendants oppose intervention on numerous grounds.

  II. Legal Standards

  Rule 24(a)(1) of the Federal Rules of Civil Procedure provides "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." See Fed.R.Civ.Pro. 24(a)(1). Title VII provides Page 3 that "the person or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC]." See 42 U.S.C. § 2000e-5(f)(1); see also EEOC V. DPCE, Inc., 1990 WL 54995, at * 1 (E.D. Pa. April 25, 1990). The statute, however, does not grant an unconditional right to assert additional claims. See 42 U.S.C. § 2000e-5(f)(1): see also EEOC v. The West Co., 1986 WL 1239, at *3 (E.D. Pa. Jan. 27, 1986) ("The fact that [plaintiff] has an unconditional right to intervene in the EEOC's Title VII action, however, does not provide her with an unconditional right to bring state law claims in the same action."). Additionally, the right to intervene "presupposes the presentation of a cognizable claim that the intervenor would have standing to pursue." EEOC v. Victoria's Secret Stores. Inc., 2003 WL 21282193, at * 1 (Jan. 13, 2003) (citations omitted). Thus, a motion to intervene should be denied when standing is lacking or the complaint fails to present cognizable claims. Id.

  42 U.S.C. § 2000e-5(f)(1) clearly grants to Burroughs the right to intervene this action. The right to intervene, however, is not coextensive with the assertion of additional claims. Thus, the narrow issues before the court concern the appropriate scope of Burroughs's intervention and whether the complaint asserts cognizable claims for which she has standing.

  A. Antitrust Claims

  In Count I of her proposed complaint-in-intervention, Burroughs asserts antitrust claims against Lepore and Driscoll pursuant to the Sherman and Clayton Acts, 15 U.S.C. § 1 et. seq. and 15 U.S.C. § 15 et. seq., respectively. Lepore and Driscoll argue that Burroughs's claims under the Sherman Act and the Clayton Act cannot be added because: (1) they impermissibly expand the scope of the Title VII litigation; (2) she lacks standing to assert claims under either Act; and (3) she fails to state a claim under either Act. (Defendant L.F. Driscoll's Motion in Opposition to Page 4 Plaintiff's Amended Motion Intervene at 3-6; Defendant Dan Lepore & Sons Company Motion in Opposition to the Amended Motion to Intervene of Beth Anne Burroughs at 1-3). Burroughs urges the Court to grant the Motion to Intervene and decide the issue of pendent jurisdiction only should Defendants file a Rule 12(b) motion. (Burroughs' Reply to Defendant Lepore's Motion Opposing the Intervention of Beth A. Burroughs at 1).

  Neither the Sherman Act nor the Clayton Act "provide a remedy for what are in actuality Title VII claims." Dalev v. St. Agnes Hospital. Inc., 490 F. Supp. 1309, 1317 (E.D.Pa. 1980) (citing Marchwinski v. Oliver Tyrone Corp., 83 F.R.D. 606 (W.D. Pa. 1979)); see also Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 107 S.Ct. 484, 93 L.Ed.2d 429 (1986). Stated differently, "the type of injury redressed by Title VII is not related to the type of injury cognizable under antitrust laws, for [they provide] remedy for sex discrimination." Daley, 490 F. Supp. at 1318. Policy considerations also disfavor allowing plaintiffs to recast Title VII claims as antitrust claims: "[B]y simply phrasing their claim in terms of the malleable term `competition' and bringing in a civil action sounding in antitrust, plaintiffs could easily circumvent the vital administrative procedure of Title VII and virtually eliminate the EEOC's role as conciliator, thereby frustrating a major policy behind the statute." Id., (quoting Monk v. Island Creek Coal Co., 1979 WL 266, at * 8 (W.D. Va. July 24, 1979)). In determining whether a plaintiff has standing to pursue antitrust claims "courts must analyze the question of antitrust injury from the viewpoint of the consumer of the product or services at issue" as antitrust laws were promulgated to protect competition, not competitors. See Hughes v. Halbach & Braun Indus., Ltd., 10 F. Supp.2d 491, 494 (W.D. Pa. 1998) (citing Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct 897, Page 5 74 L.Ed.2d 723 (1983)).

  Burroughs specifically alleges that Lepore and Driscoll acted in concert to "remove Burroughs from both the RPAC site and the Wharton School site on the false pretext of a minor safety infraction, after she tried to stop ongoing sexual harassment," (Burroughs's proposed complaint-in-intervention ¶ 38), and that this action is "ongoing and continuous and directed specifically at Burroughs in illegal retaliation for attempts to stop constant sexual harassment altering the terms and conditions of her employment." (Id. ¶ 45). Burroughs also alleges that as a direct and proximate result of Defendants' illegal action, she has suffered antitrust injury, loss of income and earning capacity, and continues to be excluded from relevant job markets. She seeks treble damages, among other relief, for Defendants' "illegal concerted action in restraint of trade and boycotting her, based on her gender." (Id. ¶ 43).

  On its face, Burroughs's proposed complaint-in-intervention fails to allege the type of injury antitrust laws were designed to remedy. See Daley, supra; Hughes, supra. Although Burroughs alleges that she suffered "antitrust injury," it is clear from a reading of the proposed complaint-in-intervention that in actuality she seeks a remedy for injury to competitors, not to competition. Indeed, Count I of Burroughs's proposed complaint-in-intervention attempts to recast Title VII claims into purported violations of the Sherman and Clayton Acts. Simply stated, Burroughs alleges specific acts of sexual discrimination which result in the type of injury redressed by ...


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