Haynes and Boone Obtains Summary Judgment Victory for Berryhill Hot Tamales


HOUSTON - The Haynes and Boone, LLP team of Houston Partners Matthew Deffebach and Yasser Madriz, Houston Associates Meghaan McElroy and Caroline Dwairy, and rel="noopener noreferrer" Dallas Associate Lindsay Murchison have scored a summary judgment victory for Berryhill Hot Tamales Corporation (BHT), the franchisor of Berryhill Baja Grill & Cantina restaurants.

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit on Jan. 24, 2012 that included claims under Title VII of the Civil Rights Act of 1964 (Title VI) against Simbaki, Ltd. (Simbaki), an entity that acquired the franchise rights to operate Berryhill Baja Grill & Cantina restaurants. On March 1, 2012, two individuals who had worked for Simbaki at one of its franchise restaurants (intervenors) intervened into the EEOC’s lawsuit, initiating claims against Simbaki (similar to those filed by the EEOC), but added BHT to the lawsuit based on its franchisor/franchisee relationship with Simbaki.

Each of the intervenors had filed charges of discrimination with the EEOC before the EEOC filed its lawsuit. Each named “Berryhill Baja Grill” as the employer and listed its address on Montrose Boulevard.

After the conclusion of discovery, BHT filed a motion for summary judgment. Among other arguments, BHT argued that it was entitled to summary judgment on intervenors’ Title VII claims against it because intervenors failed to exhaust their administrative remedies before the EEOC as to BHT. As a prerequisite to pursuing a Title VII claim, a plaintiff must first exhaust his or her administrative remedies by filing a timely charge with the EEOC.

In this case, neither intervenor named BHT in the charge of discrimination filed with the EEOC. The district court explained, however, that “[t]here exists generally an exception to the exhaustion requirement where there is an identity of interest between the party named in the EEOC charge and the unnamed defendant, who was provided adequate notice of the charge and was given the opportunity to participate in the conciliation proceedings” with the EEOC. Nevertheless, courts in the Fifth Circuit “have continuously determined that the exception is not available to a party represented by counsel before the EEOC.”

In this case, the court explained that it was undisputed that counsel represented intervenors before the EEOC. Consequently, the court held that intervenors could not avail themselves of the identity of interest exception.

As a result, on May 29, the court dismissed all claims against BHT.

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