United States District Court, D. Arizona
Honorable James A. Soto United States District Judge
before the Court are Plaintiff's Motion for Conditional
Referral to the Department of Labor (Writ of Assistance),
with a Stay of Proceedings (Doc. 44), and Plaintiff's
Motion for Oral Argument and Revisit the Motion for
Appointment of Counsel (Doc. 47). Defendant filed responses
in opposition to the motions. (Docs. 45, 48.) Plaintiff has
not filed replies to the responses, and the time to do so has
lapsed. This matter is ripe for review.
April of 2013, Plaintiff notified Defendant's Human
Resources that he was being treated differently from other
employees due to his disability. (Doc. 1 at ¶ 14.)
Plaintiff suffers from Asperger's Syndrome/Autism
Spectrum Disorder. Id. at ¶ 11. Plaintiff
alleges that after he requested accommodations he was
needlessly disciplined and discriminated against due to his
disability. Id. at ¶¶ 19-23. On May 15,
2014, Defendant terminated Plaintiff. Id. at ¶
of 2013, Plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), which was
amended for the last time in May of 2014. Id. at
¶¶ 53, 55; Def.'s Resp. (Doc. 45), U.S. EEOC
Charge No. 540-2013-02425 (Ex. “1”); Def.'s
Resp. (Doc. 45), U.S. EEOC Amended Charge No. 540-2013-02425
24, 2015, the EEOC dismissed Plaintiff's charge and
notified Plaintiff of his right to sue. (Def.'s Resp.
(Doc. 45), U.S. EEOC Dismissal and Notice of Rights (Ex.
“5”).) Additionally, the EEOC notified Plaintiff
“If you need to inspect or obtain a copy of information
in EEOC's file on the charge, please request it promptly
in writing and provide your charge number (as shown on your
Notice). While EEOC destroys charge files after a certain
time, all charge files are kept for at least 6 months after
our last action on the case. Therefore, if you file suit and
want to review the charge file, please make your
review request within 6 months of this
Notice. (Before filing suit, any request should be
made within the next 90 days.).” Id. (emphasis
March of 2014, Plaintiff filed a complaint with the Mine
Safety and Health Administration (“MSHA”). (Doc.
44 at ¶ 3.) MSHA sent Plaintiff a letter stating that
MSHA did “not believe that there is sufficient evidence
to establish, by a preponderance of the evidence that a
violation of Section 105(c) occurred. For that reason, the
Secretary of Labor will not file a discrimination case with
the Federal Mine Safety and Review Commission
(“Commission”) in this matter. However, you
continue to have the right to file a discrimination case on
your own behalf with the Commission. If you decide to file
your own case, you must do so within 30 days of this letter .
. . .” (Def.'s Resp. (Doc. 45), Letter from U.S.
Dep't of Labor, MSHA (Ex. “6”).)
did not provide new information to the EEOC or MSHA or file
an appeal. (See Doc. 45.) Instead, Plaintiff filed a
complaint in federal court. (Doc. 1.) There is no indication
that Plaintiff requested his EEOC charge filed until now.
(See Doc. 44.)
REQUEST FOR A STAY
deciding whether to stay a pending proceeding, a court must
weigh competing interests including: (1) the possible damage
which may result from the granting of a stay; (2) the
hardship or inequity which a party may suffer in being
required to go forward; and (3) the orderly course of justice
measured in terms of the simplifying or complicating of
issues, proof, and questions of law which could be expected
to result from a stay. The moving party bears the burden of
making out a clear case of hardship on inequity in being
required to go forward.” Prescott v. Rady
Children's Hosp.-San Diego, 265 F.Supp.3d 1090, 1098
(S.D. Cal. 2017) (citing Landis v. N. Am. Co., 299
U.S. 248, 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); CMAX,
Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).
requests to refer this matter to the Department of Labor.
(Doc. 44.) Plaintiff is requesting that the Department of
Labor obtain additional records and review their existing
records from the EEOC charge and the MSHA complaint and
determine if Defendant acted in bad faith when terminating
Plaintiff. Id. This is essentially a request that
the Department of Labor conduct further investigation and
reconsider Plaintiff's EEOC charge and MSHA complaint
outside the non-jurisdictional deadlines. Plaintiff asserts
that he should still be permitted to make this request
because the deadlines are non-jurisdictional. (Doc. 47 at
¶ 10.) This is incorrect. Failure to satisfy
non-jurisdictional requirements may result in dismissal.
Fed.R.Civ.P. 12(6); EEOC v. Blinded Veterans Ass'n, 128
F.Supp.3d 33, 37 (D.D.C. 2015). Otherwise the deadlines put
in place by Congress and the agency would be meaningless.
Plaintiff has not provided any information as to why the
deadlines should be tolled. (Docs. 44, 47.) Further there is
no indication that the EEOC still possesses Plaintiff's
charge file as more than six months as passed since the
EEOC's last action on Plaintiff's charge. Therefore,
requiring the EEOC to re-evaluate their conclusions would
require the EEOC to re-conduct their investigation.
Therefore, staying ...