U.S. Equal Employment Opportunity Commission v. MJC, Inc. et al

Filing 22

INCLINATIONS by JUDGE SUSAN OKI MOLLWAY. (afc)

INCLINATIONS
It is Judge Mollway’s practice, whenever possible, to
notify attorneys and pro se parties scheduled to argue motions before
her of her inclinations on the motions and the reasons for the
inclinations. This is part of Judge Mollway’s normal practice, rather
than a procedure unique to a particular case, and is designed to help
the advocates prepare for oral argument. It is the judge’s hope that
the advance notice of her inclination and the accompanying reasons
will focus the oral argument and permit the advocates to use the
hearing to show the judge why she is mistaken or why she is correct.
The judge is not bound by the inclination and sometimes departs from
the inclination in light of oral argument.
Judge Mollway attempts to communicate her inclinations no
later than one working day before a hearing. The court’s preference
is to distribute the inclinations to the parties via the court’s
electronic filing system (“CM/ECF”). Accordingly, parties are
encouraged to participate in the court’s CM/ECF system.
The inclination is intended to be only a summary of the
court’s thinking before the hearing and not a complete legal
discussion. The court will issue a written order with a detailed
analysis after the hearing.
The parties are reminded that, under Local Rule 7.4, they
may not submit supplemental briefs (such as briefs addressing the
inclination) unless authorized by the court. Supplemental
declarations, affidavits, and/or other evidence in response to the
court’s inclinations are prohibited unless authorized by the court.
The parties are also reminded that they must comply with Local Rule
7.8 if they intend to rely on uncited authorities at the hearing.
Occasionally, Judge Mollway does not announce an
inclination, especially if materials are submitted to her right before
the hearing. Because briefing on criminal motions closes just a few
days before the hearing, it is not uncommon for her to be unable to
announce an inclination on a criminal motion until the start of the
hearing itself. Certainly if an evidentiary hearing is scheduled on
matters necessary to a decision on either a civil or criminal motion,
no inclination will be announced.
Judge Mollway’s inclinations may not be cited as authority
for any proposition. However, the inclinations will be electronically
filed for the convenience of the parties.
Judge Mollway announces the following inclinations:

EEOC v. MJC, Inc. et al., Civ. No. 17-00371 SOM-RLP
The EEOC complains that a Hawaii car dealership
(Defendants MJC, Inc. and GAC Auto Group, Inc.) violated the
Americans with Disabilities Act (“ADA”) in failing to hire Ryan
Vicari because of his hearing disability.

See ECF 1.

Before

the court is Defendants’ motion to (1) dismiss the Complaint for
lack of subject matter jurisdiction; (2) stay the proceedings;
or (3) dismiss the Complaint for failure to state a claim.
Defendants allege that the EEOC failed to engage them in the
informal conciliation process mandated by 42 U.S.C. § 2000e-5,
and that the court should therefore dismiss the Complaint for
lack of jurisdiction or issue a stay.

Defendants also claim

that the Complaint fails to adequately allege facts going to
whether Vicari is a “qualified individual” under the ADA, and
therefore does not state a claim upon which relief can be
granted.
The court is inclined to (1) deny the motion to
dismiss for lack of subject matter jurisdiction; (2) deny the
motion for a stay; and (3) grant the motion to dismiss for
failure to state a claim.
The court is inclined to deny Defendants’ Rule
12(b)(1) motion.

The court is inclined to hold that the EEOC’s

conciliation obligations under 42 U.S.C. § 2000e-5 are not
jurisdictional requirements.

The court is aware of the Ninth
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Circuit’s holding in EEOC v. Pierce Packing Co., 669 F.2d 605,
608 (9th Cir. 1982), that “conciliation [is a] jurisdictional
condition[] precedent to suit by the EEOC.”

The court is

inclined to reason that Pierce Packing is no longer
authoritative in light of statements by the Supreme Court and
the Ninth Circuit to the effect that “the appropriate remedy”
following an EEOC failure to conciliate is “a stay,” Mach
Mining, 135 S. Ct. 1645, 1656 (2015), “not the dismissal of the
aggrieved employees’ claims” under Rule 12(b)(1) or otherwise,
Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1199
(9th Cir. 2016), cert. denied sub nom. Geo Grp., Inc. v. EEOC,
137 S. Ct. 623 (2017).

The court is inclined to rule that

statements about imposing a stay as a remedy cut in favor of
deeming the conciliation requirement nonjurisdictional.

A stay

can only be a remedy if a court has subject matter jurisdiction.
See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 515 (1869)
(“[W]ithout jurisdiction [a federal] court cannot proceed at all
in any cause.” (emphasis added)).
The court is also inclined to hold that Pierce Packing
is inconsistent with the clear statement rule announced in
Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006).

This court

is inclined to conclude that the text of 42 U.S.C. § 2000e5(f)(1) does not speak in clearly jurisdictional terms, and that
there is no historic line of Supreme Court precedents holding
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that similar provisions are jurisdictional.

The court is

inclined to rule that conciliation is therefore not a
jurisdictional requirement and that Defendants’ Rule 12(b)(1)
challenge fails.
The court is inclined to deny Defendants’ request for
a stay.

Defendants complain that the EEOC did not provide

Defendants with the factual basis underlying its determination;
that the EEOC asked Defendants to pay damages; and that the EEOC
did not tell Defendants what they should have “done
differently.”

The court is inclined to understand the EEOC as

arguing, without regard to whether Defendants’ assertions are
accurate, that its conduct, even as Defendants describe it,
comports with the law.

See ECF 20, PageID #s 123-24.

The court is inclined to recognize that the EEOC may,
pursuant to its Title VII nondisclosure obligation, be holding
back from the court certain communications that address the
substance of any conciliation discussions.

For that reason, the

EEOC may be unable to dispute Defendants’ characterization of
the process.

See 42 U.S.C. § 2000e-5(b); Mach Mining, 135 S.

Ct. at 1655 n.2.

But the court is inclined to reason that the

EEOC remained fully capable of addressing facts material to the
stay issue.

Mach Mining held that judicial review of

conciliation efforts concerns only “whether the EEOC attempted
to confer about a charge, and not . . . what happened (i.e.,
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statements made or positions taken) during those discussions.”
135 S. Ct. at 1656.
The court is inclined to rule that the present record
does not establish that the EEOC failed to satisfy its
conciliation obligation.

The court is inclined to rely on the

standard from Mach Mining, which requires the agency to “tell
the employer about the claim--essentially, what practice has
harmed which person or class,” and to “afford the employer a
chance to discuss and rectify a specified discriminatory
practice.”

135 S. Ct. at 1652-53.
The court is inclined to read the record as suggesting

that the EEOC did tell the employer about the claim in its
Letter of Determination when it stated that Vicari had “alleged
that [Defendants] refused to hire him because of his
disability,” and also told the employer that the EEOC had
“determined that there is reasonable cause to believe that the
Charging Party was denied hire because of a disability.”
ECF 20-2, PageID # 136.

See

The court is further inclined to rule

that the letters submitted by Defendants further indicate that
Defendants were aware at the time of any conciliation
discussions that the EEOC was concerned about what had occurred
during a job “interview” between Vicari and Guy Tsurumaki at
Cutter Mazda.

ECF 18-5, PageID # 95 n.2; ECF 18-6, PageID # 98

n.2; ECF 18-2, PageID # 88.
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The court is inclined to rule that Defendants do not
meet their burden as movants of showing that the EEOC failed to
afford them “a chance to discuss and rectify [the] specified
discriminatory practice.”

Mach Mining, 135 S. Ct. at 1653.

The

court is inclined to view the letters submitted by Defendants as
illustrating that at least some discussions relating to the
discrimination charge took place between the EEOC and
Defendants.

See, e.g., ECF 18-3, PageID # 91 (indicating that

Defendants’ counsel “discuss[ed] issues related to the EEOC’s
letter of determination” with Kaopuiki over the phone).

The

court is also inclined to view the record as indicating that,
during these discussions, the EEOC gave Defendants an
opportunity to address the alleged discrimination.

See, e.g.,

ECF 18-4, PageID # 94 (indicating that Defendants declined such
an opportunity because they were “not in a position to consider
resolution without . . . the EEOC provid[ing] its factual basis
for the conclusion that a violation occurred”); ECF 18-2, PageID
# 89 (averring that the EEOC “repeatedly demanded that
Defendants provide it with a counteroffer”).
The court is inclined to reject Defendants’ argument
that the EEOC was obligated to provide them with “the factual
basis” for its reasonable cause determination.

See Mach Mining,

135 S. Ct. at 1653-54 (rejecting a requirement that the
Commission “lay out ‘the factual and legal basis for’ all its
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positions” and noting that “Congress left to the EEOC such
strategic decisions as whether to lay all its cards on the
table”).
The court is inclined to rule that Defendants do not
show that a stay is warranted based on the EEOC’s alleged
settlement offer and repeated demands that Defendants “provide
it with a counteroffer.”

The court is inclined to reason that

Mach Mining and Geo Group allow such a negotiating strategy.
See Mach Mining, 135 S. Ct. at 1655 (“Congress left to the EEOC
such strategic decisions as whether to make a bare-minimum offer
. . . or to respond to each of an employer’s counter-offers.”);
id. at 1654 (recognizing the possibility that the EEOC might
make a “monetary request” during conciliation and rejecting the
notion that the EEOC “must refrain from making ‘take-it-orleave-it’ offers”); Geo Grp., 816 F.3d at 1199 (holding that the
EEOC satisfied its conciliation obligation even though it
“proposed a settlement [that] include[ed] damages”).
The court is further inclined to consider the
Defendants’ “damages extraction” argument as falling outside the
permissible scope of judicial review.

The court is inclined to

rely on Mach Mining’s statement that Title VII “grant[s] the
EEOC discretion over the pace and duration of conciliation
efforts, the plasticity and firmness of its negotiating
positions, and the content of its demands for relief,” and
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judicial review of “any of those choices” “extends too far.”
135 S. Ct. at 1655 (emphasis added).

The court is also inclined

to hold that reviewing whether the EEOC did, in fact, repeatedly
demand that Defendants provide it with a counteroffer would
require the court to review “what happened (i.e., statements
made or positions taken) during [conciliation] discussions,”
which the Supreme Court has forbidden.

See id. at 1656.

The court is inclined to reject Defendants’ suggestion
that “the EEOC is required to submit an affidavit” stating that
it met its conciliation obligations.

The court is inclined to

read Mach Mining as stating only a sufficient condition
pertaining to such an affidavit, not a necessary one.

See Mach

Mining, 135 S. Ct. at 1656 (“A sworn affidavit from the EEOC
stating that it has performed the obligations . . . but that its
efforts have failed will usually suffice to show that it has met
the conciliation requirement.” (emphasis added)).

The court is

also inclined to see the EEOC as having relied on more than
“bookend” letters to support its position that it adequately
conciliated: it also relies on the facts that “Defendants’ own
documents” establish.

See ECF 20, PageID #s 123-24.

While the court is inclined not to dismiss on
jurisdictional grounds and not to stay this action, the court is
inclined to grant Defendants’ alternative motion to dismiss the
Complaint for failure to state a claim.
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The court is inclined

to read the Complaint as failing to allege facts going to
whether Vicari was a qualified individual.

See Hutton v. Elf

Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001).
The Complaint does not discuss what the detailer
position at Cutter Mazda involved.

The only allegation

regarding Vicari’s status is that he is “hearing impaired.”
ECF 1, PageID #s 5-6.

See

The court is inclined to rule that this

allegation is insufficient to address what the “job-related
requirements of the [detailer] position” were, let alone whether
Vicari was capable of performing them.

See 29 C.F.R.

§ 1630.2(m).
The court is inclined to reject the EEOC’s argument
that dismissal is not warranted even if the EEOC failed to
adequately plead that Vicari is a qualified individual.

While

stating a prima facie case under the ADA “is an evidentiary
standard, not a pleading requirement,” Lambdin v. Marriott
Resorts, Civ. No. 14-00345 SOM/KSC, 2015 WL 263569, at *2 n.1
(D. Haw. Jan. 21, 2015) (quoting Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510 (2002)), this court is inclined to rule that
this does not mean that there is no pleading obligation
whatsoever related to whether a claimant is a qualified
individual.

The court is inclined to rule that the EEOC must

still allege some facts tending to show that Vicari was a
qualified individual.
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The court is inclined to deny the EEOC’s request that
the court take judicial notice that Cutter Mazda’s “detailer
position” “involves cleaning cars” and “does not require
specialized skills.”

ECF 20, PageID # 131.

The court is

inclined to say that it has no basis on the present record for
determining that this is a “generally known” matter.

Fed. R.

Evid. 201.
If the Complaint is dismissed, the court is inclined
to grant the EEOC leave to amend the Complaint to correct any
pleading defects.

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