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Harris v. Asarco LLC

United States District Court, D. Arizona

May 3, 2018

Gerald Harris, Plaintiff,
ASARCO LLC, Defendant.


          Honorable James A. Soto United States District Judge

         Pending 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.


         In 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 ¶ 50.

         A. EEOC Charge

         In June 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 (Ex. “4”).

         On June 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 in original).

         B. MSHA Complaint

         In 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”).)

         C. Lawsuit

         Plaintiff 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.)


         “When 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)).

         Plaintiff 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 ΒΆ 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 ...

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