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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Honorable Marcia S. Krieger 

Civil Action No. 11-cv-02560-MSK-MEH 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

 Plaintiff, 

v. 

THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC., 

 

 Defendant. 

Consolidated with: 

Civil Action No. 12-cv-02137-MSK-MEH 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

 Plaintiff, 

WENDY J. CABREARA, 

 Intervenor-Plaintiff, 

v. 

THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC., 

 Defendant. 

OPINION AND ORDER DENYING 

LISA K. JAGER’S MOTION TO INTERVENE 

 THIS MATTER comes before the Court on Ms. Lisa K. Jager’s Motion to Intervene 

(#119), Defendant HoneyBaked Ham’s (HBH) Opposition (#149), and Ms. Jager’s Reply (#181). 

The Motion was referred to the Magistrate Judge, who Recommends (#187) that the Motion be 

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denied. Ms. Jager filed Objections (#205) to the Recommendation, to which HBH Responded 

(#224). 

I. Jurisdiction 

 The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331. 

II. Background 

 As detailed in previous orders, this case arises from a charge of discrimination filed by 

Plaintiff-Intervenor Wendy Cabrera with the EEOC. Ms. Cabrera, a former HBH employee, 

alleged that she was sexually harassed by Mr. James Jackman from March 2010 to May 2010, 

and that she suffered retaliatory termination in May 2010 by Ms. Donna Wagner-Rago and Mr. 

Michael Costello. 

 After an investigation, the EEOC determined that there was reasonable cause to believe 

that Title VII violations had occurred. In September 2011, the EEOC filed this suit on behalf of 

Ms. Cabrera and other aggrieved individuals, alleging sexually hostile work environment and 

retaliation. As specified in the Court’s Order (#289) on HBH’s Motion to Dismiss, the EEOC’s 

claims relate to the alleged unlawful conduct of Mr. Jackman, and retaliation for complaints 

about his conduct. 

Thereafter, in May 2012, Ms. Jager (also a former HBH employee) filed a charge of 

discrimination with the EEOC, alleging sexual harassment by an HBH manager, Mr. Ray Olson, 

and retaliatory termination. Ms. Jager has since terminated the administrative proceedings by the 

EEOC. She now moves, under Fed. R. Civ. P. 24(a)(1), to intervene as a plaintiff in this case. 

III. Standard of Review 

When a magistrate judge issues a recommendation on a dispositive motion, the parties 

may file specific, written objections within fourteen days after being served with a copy of the 

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recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Here, Ms. Jager has timely filed 

Objections to the Recommendation. The Court therefore reviews the Recommendation de novo. 

U.S. v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 

1996). 

IV. Analysis 

Rule 24(a)(1) provides that, upon timely motion, a court must permit a party to intervene 

who “is given an unconditional right to intervene by a federal statute.” Ms. Jager argues that 42 

U.S.C. § 2000e-5(f)(1) grants her such unconditional right to intervene because she is an 

“aggrieved person” in this suit. She points out that her claims are identical to the EEOC’s 

claims. 

HBH opposes Ms. Jager’s motion, arguing that she has no unconditional right to 

intervene because her claims are completely different from those asserted in this litigation. As 

such, HBH contends that the Court lacks subject matter jurisdiction over Ms. Jager’s claims 

because she has not exhausted her administrative remedies. 

As pertinent here, 42 U.S.C. § 2000e-5(f)(1) states that “[t]he person or persons 

aggrieved shall have the right to intervene in a civil action” brought by the EEOC. The Tenth 

Circuit has construed 42 U.S.C. § 2000e-5(f)(1) to confer an unconditional right to intervene 

upon the charging party whose claims provide the basis for an EEOC action. Willis v. 

W.H.Braum, Inc., 80 Fed. Appx. 63, 66-67 (10th Cir. 2003). However, “no authority suggests 

that the right to intervene exempts [aggrieved persons] from the traditional exhaustion 

requirements applicable to individual plaintiffs bringing Title VII claims.” EEOC v. JBS USA, 

LLC, 794 F.Supp.2d 1188, 1199 (D. Colo. 2011). 

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Under the “single filing rule,” however, an aggrieved person who has not exhausted her 

administrative remedies with the EEOC may seek to intervene in Title VII class, or multiplaintiff, actions. EEOC v. Outback Steak House, 245 F.R.D. 657, 660 (D. Colo. 2007). The 

rule provides that a “similarly situated plaintiff” who has not filed a charge of discrimination but 

whose claims arise out of the same circumstances and the same time frame as individuals who 

did file a proper charge may “piggyback” on the properly filed charge. JBS USA, 794 F.Supp.2d 

at 1203 (citing Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1197 (10th Cir. 2004)). As long as 

the EEOC and the employer are aware of the nature and scope of the allegations, the purposes 

behind the filling requirement are satisfied and no injustice occurs by allowing piggybacking. 

EEOC v. Albertson’s LLC, 579 F.Supp.2d 1342, 1345 (D. Colo. 2008). Thus, to satisfy the 

single filing rule in demonstrating that she is an “aggrieved person” entitled to intervene, Ms. 

Jager must allege that she was “subject to similar discrimination by the same actors during the 

same time frame as the charging parties.” Outback Steak House, 245 F.R.D. at 660. 

As noted, the scope of the claims in this lawsuit is limited to the alleged sexual 

harassment by Mr. Jackman during his employment with HBH (approximately one year from 

May 2009 to May 2010), and retaliation by Ms. Wagner-Rago and Mr. Costello. In her proposed 

complaint, Ms. Jager alleges that she was subjected to a sexually hostile work environment by 

Mr. Olsen, a manager at the HBH Littleton store, from October 2011 to January 2012, when she 

was terminated. Ms. Jager alleges that she was terminated in retaliation for opposing Mr. 

Olson’s conduct. Ms. Jager further alleges that after the termination, she contacted Tim 

Franklin, HBH’s Regional Manager, and was interviewed by Dawn Suhail-Lewis, a Human 

Resources Consultant. 

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 Based on these allegations, the Court finds that Ms. Jager’s claims are factually unrelated 

and distinct from those asserted by the EEOC and Ms. Cabrera. Ms. Jager’s claims do not 

involve any of the same actors, or the same time frame, as the claims in this case. Indeed, the 

conduct she complains of did not occur until after this lawsuit had been filed. As such, HBH 

could not have been aware of the nature and scope of Ms. Jager’s allegations, or that they could 

be a part of this suit. Thus, Ms. Jager is not an “aggrieved person” for purposes of 42 U.S.C. § 

2000e-5(f)(1). She therefore cannot “piggyback” on Ms. Cabrera’s properly filed charge of 

discrimination. The Court lacks subject matter jurisdiction over her claims because she has not 

exhausted her administrative remedies. 

V. Conclusion

 For the reasons stated, the Ms. Jager’s Motion to Intervene (#119) is DENIED. 

 Dated this 4th day of February, 2013. 

BY THE COURT:

 

 Marcia S. Krieger 

 Chief United States District Judge

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