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Equal Employment Opportunity Commission v. Rappaport

September 16, 2006

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
RAPPAPORT, HERTZ, CHERSON & ROSENTHAL, P.C., DEFENDANT



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

This case involves allegations by the Equal Employment Opportunity Commission ("EEOC") of sex discrimination, retaliation, and constructive discharge against the law firm Rappaport, Hertz, Cherson & Rosenthal, P.C. ("Rappaport Hertz" or the "defendant") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"). Presently before the Court are the following motions: (1) a motion by Melissa Castillo ("Castillo") to intervene in the Title VII action and add additional defendants and claims; and (2) a cross-motion by the defendant to compel Castillo to arbitrate her additional state and city claims pursuant to the Federal Arbitration Act, 9 U.S.C. § 4.

I. BACKGROUND

Castillo was employed as a closing coordinator at Rappaport Hertz from May 2003 to August 2004. Castillo claims that almost immediately after beginning employment one of her co-workers, Herbie Gonzalez, began making sexual advances toward her, such as staring; buying flowers; and saying things such as "you are beautiful," and "I love you." Castillo complained to management and they responded by moving Gonzalez to an office that was farther away. However, the alleged harassment continued, with Gonzalez paging Castillo's intercom twice a day, asking her out on dates, and placing his arm around her shoulders.

The harassment culminated on July 21, 2004, when Castillo picked up the receiver of her phone and alleges that she felt a sticky liquid on her face by her mouth. Castillo and three of her co-workers all concluded that the foreign substance smelled like semen. Upon notifying attorney William Rappaport of the incident, he suggested that the police be called. A police report was filed indicating that a sticky substance was found on the phone.

Gonzalez allegedly signed into the building the night prior to the July 21st incident at approximately 11:00 pm. In addition, Gonzalez allegedly made statements to co-workers that he was worried that the police might ask for a sample of his DNA and that he was so drunk on the night of July 20 that he did not remember anything from that night.

Two weeks later no action had been taken by management with regard to Gonzalez. Castillo met with William Rappaport to discuss why nothing had been done and he told her that he did not believe Gonzalez was responsible for the incident. Castillo then indicated that she could no longer work at the law firm and she resigned.

On January 18, 2005, Castillo filed with the EEOC a charge of sex discrimination and harassment against Rappaport Hertz, William Rappaport, and Herbie Gonzalez, alleging that she was subject to egregious acts of sexual harassment and gender discrimination. The EEOC investigated Castillo's claims and, on June 17, 2005, issued a determination finding that Rappaport Hertz subjected Castillo to sexual harassment and constructively discharged her, establishing a violation of Title VII. On August 17, 2005, the EEOC commenced this lawsuit to correct the unlawful employment practices and to provide appropriate relief to Castillo.

Castillo filed this motion to intervene to pursue a claim against Rappaport Hertz under Title VII, and to pursue state and city law claims against the defendant and William Rappaport and Gonzalez. The defendant opposes the motion, and crossmoves to compel arbitration, based on a compulsory arbitration agreement that Castillo entered into with the law firm when she commenced employment.

This is the second action brought by the EEOC against the law firm Rappaport Hertz alleging a pattern of unlawful sex discrimination and retaliation. The first case was commenced on September 30, 2002, on behalf of both the public interest and three women who claimed that the law firm had subjected female employees to a pattern of sexual harassment involving sexually offensive conduct, comments, epithets, and propositions, as well as retaliation for having filed complaints with the EEOC. As in this case, one of the women moved to intervene and assert state law claims, and the defendant cross-moved to compel arbitration, based on the same form arbitration agreement. The Court granted the intervenor's motion, finding there was supplemental jurisdiction over the state law claims. The Court also granted the defendant's motion to compel the intervenor to arbitrate her claims, finding that her employment claims fell within the scope of the arbitration agreement. EEOC v. Rappaport, Hertz, Cherson & Rosenthal, P.C., 273 F.Supp.2d 260 (E.D.N.Y.2003).

In the prior lawsuit, the EEOC's claims, which were not part of the arbitration agreement, were resolved by a consent decree. In this case, in addition to the specific allegations of employment discrimination, the EEOC alleges that Rappaport Hertz violated this consent decree by its conduct toward Castillo.

II. DISCUSSION

A. Motion to Intervene

Rule 24 of the Federal Rules of Civil Procedure ("Fed. R. Civ.P.") governs intervention, stating, in relevant part, that "[u]pon timely application anyone shall be permitted to intervene in an action ... when a statute of the United States confers an unconditional right to intervene." Fed.R.Civ.P. 24(a)(1). Title VII is one of the few statutes that provides individuals a right to intervene. See 42 U.S.C. § 2000e-5(f)(1) ("[T]he person or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC]...."). Most courts agree that this statutory provision permits individuals an "unconditional right to intervene" under Rule 24(a)(1) in a Title VII enforcement action brought by the EEOC against the employer. McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1119 (8th Cir.1977); EEOC v. Rekrem, Inc., 199 F.R.D. 526, 529 (S.D.N.Y.2001); EEOC v. Die Fliedermaus, L.L.C., 77 F.Supp.2d 460, 469 (S.D.N.Y.1999); EEOC v. Pacific Maritime Ass'n, 188 F.R.D. 379, 380 (D.Or.1999); see also EEOC v. Waffle House, Inc., 534 U.S. 279, 291, 122 S.Ct. 754, 763, 151 ...


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