Harris v. ASARCO LLC, No. 4:2015cv00449 - Document 50 (D. Ariz. 2018)
Court Description: ORDER Denying 44 Plaintiff's MOTION for Conditional Referral to the Department of Labor; Denying 47 Plaintiff's MOTION for Oral Arguments and MOTION for Reconsideration of the Motion for Appointment of Counsel. IT IS FURTHER ORDERED tha t Magistrate Judge Bruce G. Macdonald shall conduct a settlement conference at a date and time that is convenient for him, and that the parties shall comply with any requirements imposed by Magistrate Judge Macdonald in relation to the settlement con ference. By no later than 6/1/2018. Parties shall contact Magistrate Judge Macdonald's chambers to schedule the settlement conference. Within seven days of the conclusion of the settlement conference, the parties shall file a document with the Court stating whether or not the case settled. Parties' participation in settlement conference that deadlines shall be stayed until the settlement conference is resolved.Signed by Judge James A Soto on 5/3/2018.(MCO)
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Harris v. ASARCO LLC 1 Doc. 50 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Harris, Plaintiff, 10 11 ORDER v. 12 No. CV-15-00449-TUC-JAS ASARCO LLC, 13 Defendant. 14 15 Pending before the Court are Plaintiff’s Motion for Conditional Referral to the 16 Department of Labor (Writ of Assistance), with a Stay of Proceedings (Doc. 44), and 17 Plaintiff’s Motion for Oral Argument and Revisit the Motion for Appointment of Counsel 18 (Doc. 47). Defendant filed responses in opposition to the motions. (Docs. 45, 48.) 19 Plaintiff has not filed replies to the responses, and the time to do so has lapsed. This 20 matter is ripe for review. 21 I. FACTUAL HISTORY 22 In April of 2013, Plaintiff notified Defendant’s Human Resources that he was 23 being treated differently from other employees due to his disability. (Doc. 1 at ¶ 14.) 24 Plaintiff suffers from Asperger’s Syndrome/Autism Spectrum Disorder. Id. at ¶ 11. 25 Plaintiff alleges that after he requested accommodations he was needlessly disciplined 26 and discriminated against due to his disability. Id. at ¶¶ 19-23. On May 15, 2014, 27 Defendant terminated Plaintiff. Id. at ¶ 50. 28 Dockets.Justia.com 1 A. 2 In June of 2013, Plaintiff filed a charge with the Equal Employment Opportunity 3 Commission (“EEOC”), which was amended for the last time in May of 2014. Id. at 4 ¶¶ 53, 55; Def.’s Resp. (Doc. 45), U.S. EEOC Charge No. 540-2013-02425 (Ex. “1”); 5 Def.’s Resp. (Doc. 45), U.S. EEOC Amended Charge No. 540-2013-02425 (Ex. “4”). EEOC Charge 6 On June 24, 2015, the EEOC dismissed Plaintiff’s charge and notified Plaintiff of 7 his right to sue. (Def.’s Resp. (Doc. 45), U.S. EEOC Dismissal and Notice of Rights (Ex. 8 “5”).) Additionally, the EEOC notified Plaintiff “If you need to inspect or obtain a copy 9 of information in EEOC’s file on the charge, please request it promptly in writing and 10 provide your charge number (as shown on your Notice). While EEOC destroys charge 11 files after a certain time, all charge files are kept for at least 6 months after our last action 12 on the case. Therefore, if you file suit and want to review the charge file, please make 13 your review request within 6 months of this Notice. (Before filing suit, any request 14 should be made within the next 90 days.).” Id. (emphasis in original). 15 B. 16 In March of 2014, Plaintiff filed a complaint with the Mine Safety and Health 17 Administration (“MSHA”). (Doc. 44 at ¶ 3.) MSHA sent Plaintiff a letter stating that 18 MSHA did “not believe that there is sufficient evidence to establish, by a preponderance 19 of the evidence that a violation of Section 105(c) occurred. For that reason, the Secretary 20 of Labor will not file a discrimination case with the Federal Mine Safety and Review 21 Commission (“Commission”) in this matter. However, you continue to have the right to 22 file a discrimination case on your own behalf with the Commission. If you decide to file 23 your own case, you must do so within 30 days of this letter . . . .” (Def.’s Resp. (Doc. 45), 24 Letter from U.S. Dep’t of Labor, MSHA (Ex. “6”).) MSHA Complaint 25 C. 26 Plaintiff did not provide new information to the EEOC or MSHA or file an appeal. 27 (See Doc. 45.) Instead, Plaintiff filed a complaint in federal court. (Doc. 1.) There is no 28 indication that Plaintiff requested his EEOC charge filed until now. (See Doc. 44.) Lawsuit -2- 1 II. REQUEST FOR A STAY 2 “When deciding whether to stay a pending proceeding, a court must weigh 3 competing interests including: (1) the possible damage which may result from the 4 granting of a stay; (2) the hardship or inequity which a party may suffer in being required 5 to go forward; and (3) the orderly course of justice measured in terms of the simplifying 6 or complicating of issues, proof, and questions of law which could be expected to result 7 from a stay. The moving party bears the burden of making out a clear case of hardship on 8 inequity in being required to go forward.” Prescott v. Rady Children’s Hosp.-San Diego, 9 265 F. Supp. 3d 1090, 1098 (S.D. Cal. 2017) (citing Landis v. N. Am. Co., 299 U.S. 248, 10 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 11 1962)). 12 Plaintiff requests to refer this matter to the Department of Labor. (Doc. 44.) 13 Plaintiff is requesting that the Department of Labor obtain additional records and review 14 their existing records from the EEOC charge and the MSHA complaint and determine if 15 Defendant acted in bad faith when terminating Plaintiff. Id. This is essentially a request 16 that the Department of Labor conduct further investigation and reconsider Plaintiff’s 17 EEOC charge and MSHA complaint outside the non-jurisdictional deadlines. Plaintiff 18 asserts that he should still be permitted to make this request because the deadlines are 19 non-jurisdictional. (Doc. 47 at ¶ 10.) This is incorrect. Failure to satisfy non-jurisdictional 20 requirements may result in dismissal. Fed. R. Civ. P. 12(6); EEOC v. Blinded Veterans 21 Ass’n, 128 F. Supp. 3d 33, 37 (D.D.C. 2015). Otherwise the deadlines put in place by 22 Congress and the agency would be meaningless. Plaintiff has not provided any 23 information as to why the deadlines should be tolled. (Docs. 44, 47.) Further there is no 24 indication that the EEOC still possesses Plaintiff’s charge file as more than six months as 25 passed since the EEOC’s last action on Plaintiff’s charge. Therefore, requiring the EEOC 26 to re-evaluate their conclusions would require the EEOC to re-conduct their investigation. 27 Therefore, staying the matter is not likely to simplify any matter, despite Plaintiff’s 28 assertions. Finally, Plaintiff’s inquiry is more appropriately resolved through discovery -3- 1 requests. Plaintiff may seek assistance in completing a discovery request or demand 2 through Step Up to Justice.1 Plaintiff would not be burdened by this matter continuing 3 forward. 4 The Court finds that a stay is not appropriate, as this matter shall not be referred to 5 the Department of Labor. 6 III. REQUEST FOR REFERRAL TO DEPARTMENT OF LABOR 7 It is the Court’s understanding that Plaintiff requests that this matter be referred to 8 the Department of Labor, with an order that the Department of Labor conduct additional 9 investigation into this matter and issue a factual ruling. (Doc. 44.) The request would be 10 to limit discovery necessary in this matter as the Department of Labor will conduct 11 discovery and make a factual determination as to one of Plaintiff’s claims. This request 12 will be denied. It is neither the Court’s nor the Department of Labor’s responsibility to 13 conduct discovery in this matter. As explained above, it is likely that the Department of 14 Labor is unable to comply with this request as all applicable deadlines have long passed, 15 and the EEOC has likely destroyed the relevant charge filed. (See Def.’s Resp. (Doc. 45), 16 U.S. EEOC Dismissal and Notice of Rights (Ex. “5”); Def.’s Resp. (Doc. 45), Letter from 17 U.S. Dep’t of Labor, MSHA (Ex. “6”).) Plaintiff may contact Step Up for Justice 18 regarding advice on conducting discovery. 19 IV. REQUEST FOR COUNSEL AND ORAL ARGUMENT 20 The Court finds that Plaintiff has not shown at this time that there are exceptional 21 circumstances in this case that warrant appointment of counsel in this civil case. See, e.g., 22 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). That motion, therefore, will be 23 DENIED. 24 25 Plaintiff’s request for oral argument is denied, as oral argument would not be helpful to the Court. 26 27 28 1 Step Up to Justice (http://www.stepuptojustice.org/) offers a free, advice-only clinic for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 p.m. If a pro se litigant wishes to schedule a clinic appointment, she should contact the courthouse librarian, Mary Ann O’Neil, at MaryAnn_O’Neil@LB9.uscourts.gov. -4- 1 V. REQUEST FOR DECLARATORY JUDGMENT AND MINUTE ENTRY 2 In Plaintiff’s Motion for Oral Arguments and Revisit the Motion for Appointment 3 of Counsel, Plaintiff requests a “declaratory judgment and court-minute concluding that 4 just-stated unsolicited legal advice [that the ex parte contact with the Court is prohibited] 5 is improper-in-fact, and demonstrates malpractice.” (Doc. 47 at ¶ 9.) Defendant does not 6 address this issue in their response. (See Doc. 48.) Regarding ex-parte communication, 7 both parties have been notified that “[t]he parties shall not contact the Court’s staff (i.e., 8 Law Clerks or the Judicial Assistant) telephonically or by e-mail to ask questions or 9 express concerns regarding cases pending before the Court, and the Court has directed its 10 staff not to entertain any such informal communication.” (Doc. 3 at 1.) Therefore, except 11 for the exceptions listed in the Court’s September 23, 2015 Order, the parties shall not 12 contact the Court. The request is denied to the extent any confusion has not been 13 clarified. 14 VI. ADMONISHMENT AND SETTLEMENT CONFERENCE 15 The Court shall not issue an admonishment at this time. 16 The Court believes that a settlement conference mediated by a Magistrate Judge 17 would be helpful to the parties at this point. Therefore the Court will order the parties to 18 participate in a settlement conference. The Court will also issue a stay of the current 19 deadlines in recognition of the settlement conference. 20 VII. CONCLUSION 21 Accordingly, 22 IT IS ORDERED that Plaintiff’s motions for referral to the Department of Labor 23 with a stay (Doc. 44) and for oral arguments and appointed counsel (Doc. 47) are denied. 24 IT IS FURTHER ORDERED that Magistrate Judge Bruce G. Macdonald shall 25 conduct a settlement conference at a date and time that is convenient for him, and that the 26 parties shall comply with any requirements imposed by Magistrate Judge Macdonald in 27 relation to the settlement conference. By no later than Friday, June 01, 2018, the parties 28 shall contact Magistrate Judge Macdonald’s chambers at (520) 205-4520 to schedule the -5- 1 settlement conference. Within seven days of the conclusion of the settlement conference, 2 the parties shall file a document with the Court stating whether or not the case settled. 3 4 5 IT IS FURTHER ORDERED that due to the parties’ participation in settlement conference that deadlines shall be stayed until the settlement conference is resolved. Dated this 3rd day of May, 2018. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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