U.S. Equal Employment Opportunity Commission v. MJC, Inc. et al
Filing
26
ORDER Denying Defendants' Motion To Stay Plaintiff's Complaint For Failure To Satisfy 42 U.S.C. § 200e-5, And Granting Defendants' Motion To Dismiss For Failure To State a Claim - re 18 . "The court DENIES Defen dants' request for a stay and GRANTS Defendants' motion to dismiss. No later than February 14, 2018, the EEOC may file an Amended Complaint addressing the deficiencies noted in the present order." Signed by JUDGE SUSAN OKI MOLLWAY on 1/24/18. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
)
)
)
Plaintiff,
)
)
vs.
)
)
MJC, INC.; GAC AUTO GROUP,
)
INC. DBA CUTTER MAZDA OF
)
HONOLULU; AND DOES 1-10
)
INCLUSIVE.
)
)
Defendants.
)
_____________________________ )
Civ. No. 17-00371 SOM-RLP
ORDER DENYING DEFENDANTS’
MOTION TO STAY PLAINTIFF’S
COMPLAINT FOR FAILURE TO
SATISFY 42 U.S.C. § 2000e-5,
AND GRANTING DEFENDANTS’
MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM
ORDER DENYING DEFENDANTS’ MOTION TO STAY PLAINTIFF’S
COMPLAINT FOR FAILURE TO SATISFY 42 U.S.C. § 2000e-5, AND
GRANTING DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
I.
INTRODUCTION.
Plaintiff Equal Employment Opportunity Commission
(“EEOC”) complains that Defendants MJC, Inc., and GAC Auto
Group, Inc., which separately or together own or operate a car
dealership, violated the Americans with Disabilities Act (“ADA”)
by failing to hire Ryan Vicari because he had a hearing
disability.
Defendants move to stay the proceedings on the
ground that the EEOC allegedly failed to engage in the informal
conciliation process mandated by 42 U.S.C. § 2000e-5, which is a
condition precedent to an EEOC lawsuit.
Defendants also move to
dismiss the Complaint for failure to state a claim, arguing that
the Complaint fails to adequately allege that Vicari is a
“qualified individual” under the ADA.
The court declines to issue a stay but grants the
motion to dismiss.
Defendants fail to meet their burden as
movants of showing that a stay is warranted.
This court does,
however, dismiss the Complaint because it fails to allege facts
tending to show that Vicari is a qualified individual under the
ADA.
II.
FACTUAL BACKGROUND.
Defendants are two Hawaii corporations, GAC Auto
Group, Inc., and MJC, Inc., and some of their unidentified
employees (“Does 1-10” in the Complaint).
ECF 1, PageID #s 2-3.
GAC Auto Group is the legal name of a car dealership doing
business as Cutter Mazda of Honolulu.
See id. at PageID # 3.
GAC Auto Group is wholly owned by MJC, which, in turn, manages
the dealership.
Id.
GAC Auto Group and MJC jointly have hiring
and firing rights for the dealership.
Id.
On July 31, 2017, the EEOC filed a Complaint alleging
that “Defendants have engaged in unlawful employment practices
in violation of Section 102(a) and (b) of the ADA, 42 U.S.C.
§ 12112(a) and (b).”
ECF 1, PageID #s 5, 8.
The ADA provides:
No covered entity shall discriminate against
a qualified individual on the basis of
disability in regard to job application
procedures, the hiring, advancement, or
discharge of employees, employee
compensation, job training, and other terms,
conditions, and privileges of employment.
. . .
2
[A qualified individual is] an individual
who, with or without reasonable
accommodation, can perform the essential
functions of the employment position that
such individual holds or desires.
42 U.S.C. §§ 12111(8), 12112(a).
The EEOC alleges that Defendants failed to hire Ryan
Vicari, who is deaf, “based on his actual . . . [and] perceived
disability” after he “applied for [a car] detailer position with
Defendants on June 24, 2015.”
Id. at PageID #s 5-6.
The EEOC
presents the events of June 24, 2015, succinctly:
Charging Party [i.e., Ryan Vicari] was
interviewed on or about [June 24, 2015,] by
Defendants. During the interview,
Defendants were informed that Charging Party
is hearing impaired and can read lips. In
response, Defendants stated they could not
hire Charging Party because he was deaf and
ended the interview. Consequently, Charging
Party was not considered and/or hired for
the detailer position and/or any other
position with Defendants.
Id. at PageID # 6.
The EEOC seeks compensatory and punitive
damages for Vicari, “reinstatement or front pay,” an injunction
forbidding Defendants from engaging in further disability
discrimination, and an order requiring Defendants to implement
prophylactic policies and programs.
See id. at PageID #s 6-7;
see also 42 U.S.C. § 2000e-5(g)(1) (detailing a federal court’s
remedial powers under the ADA).
3
Defendants deny that they failed to hire Vicari for
the detailer position because he is deaf.
Instead, Defendants
say they truthfully advised Vicari “that there were no detailer
positions available.”
ECF 18-1, PageID # 76.
Defendants claim
that they then
interview[ed] [Vicari] for the only
available position--a Service Lot Attendant.
[But] [d]ue to the nature of the Service Lot
Attendant position, which requires constant
communication with other employees via twoway radios, often while driving, Defendants
understood that Mr. Vicari would not have
been able to fulfill the essential functions
of the position.
Id. at PageID #s 76-77.
This particular factual dispute is not
currently before the court.
Defendants have moved to stay the present action
following the EEOC’s alleged failure to engage Defendants in the
informal conciliation process mandated by 42 U.S.C. § 2000e5(b), which is a condition precedent to an EEOC lawsuit against
an employer.
See ECF 18-1, PageID #s 80-83; 42 U.S.C. § 2000e-
5(b), (f)(1); see also Mach Mining, LLC v. EEOC, 135 S. Ct.
1645, 1649 (2015) (“Before suing an employer for discrimination,
the Equal Employment Opportunity Commission . . . must try to
remedy unlawful workplace practices through informal methods of
conciliation.”).
Defendants claim that the EEOC failed in fact
to conciliate; they do not contest the adequacy of the
Complaint’s allegations on this score.
4
See ECF 18-1, PageID
# 76.
Defendants’ stay request is brought under Rule 7 and Rule
12(b)(1) of the Federal Rules of Civil Procedure and 42 U.S.C.
§ 2000e-5(f)(1).
ECF 18, PageID # 73.
Defendants have also moved under Rule 12(b)(6) to
dismiss the Complaint for failure to state a claim.
Defendants
describe the Complaint as deficient because it fails to set
forth facts tending to show that Vicari is a “qualified
individual” under the ADA.
Id.
The court first assures itself of jurisdiction over
this matter, then addresses the stay and the Rule 12(b)(6)
matter.
III.
THE COURT HAS JURISDICTION.
Defendants’ Motion requests a stay under Rule 12(b)(1)
of the Federal Rules of Civil Procedure, in addition to Rule 7
and 42 U.S.C. § 2000e-5(f)(1).
See ECF 18, PageID # 73.
Rule
12(b)(1) authorizes a court to dismiss claims over which it
lacks subject matter jurisdiction.
12(b)(1).
See Fed. R. Civ. P.
At the hearing on January 8, 2018, Defendants
clarified that they are not moving to dismiss for lack of
subject matter jurisdiction, and are only seeking to stay this
court’s proceedings pending further conciliation efforts.
23.
ECF
The court nevertheless assures itself of its subject matter
jurisdiction over this matter.
See Leeson v. Transam.
Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012)
5
(explaining that if a court lacks subject matter jurisdiction,
it must dismiss the complaint, sua sponte if necessary).
Title VII, and by extension the ADA, 1 grants this court
jurisdiction over EEOC lawsuits generally.
See 42 U.S.C.
§ 2000e-5(f)(3) (“Each United States district court . . . shall
have jurisdiction of actions brought under this subchapter.
Such an action may be brought in any judicial district court in
the State in which the unlawful employment practice is alleged
to have been committed.”).
Title VII also sets forth various
conditions precedent to an EEOC lawsuit against an employer.
See 42 U.S.C. § 2000e-5(b).
One such condition requires the
agency, before it “may bring a civil action,” to “endeavor to
eliminate any . . . alleged unlawful employment practice by
informal methods of conference, conciliation, and persuasion.”
Id. § 2000e-5(b), (f)(1).
This court concludes that this
conciliation requirement is not “jurisdictional”; that is, a
federal court is not required to dismiss an ADA action for lack
of subject matter jurisdiction whenever the EEOC fails to
satisfy this obligation prior to filing suit.
See Hamer v.
Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 (2017)
(explaining that a “[f]ailure to comply with a jurisdictional
1
The ADA incorporates Title VII’s enforcement mechanisms,
including those contained at 42 U.S.C. § 2000e-5. See 42 U.S.C.
§ 12117(a). This Order therefore refers to both the ADA and
Title VII.
6
[requirement] . . . deprives a court of adjudicatory authority
over the case, necessitating dismissal”).
This court exercises jurisdiction regardless of
whether the EEOC conciliated.
Title VII empowers a court, in
the event of nonconciliation, to “stay further proceedings for
not more than sixty days pending . . . further efforts of the
Commission to obtain voluntary compliance.”
5(f)(1) (emphasis added).
42 U.S.C. § 2000e-
In Mach Mining, LLC v. EEOC, 135 S.
Ct. 1645, 1656 (2015), the Supreme Court declared that “the
appropriate remedy [following a failure to conciliate] is to
order the EEOC to undertake the mandated efforts to obtain
voluntary compliance,” given the statute’s authorization of a
stay for that purpose.
Id. (citing 42 U.S.C. § 2000e-5(f)(1)).
The Ninth Circuit, following Mach Mining, has recently held that
“if the EEOC . . . failed to conciliate prior to bringing suit,
the appropriate remedy [is] a stay of proceedings to permit an
attempt at conciliation, not the dismissal of the aggrieved
employees’ claims.”
Arizona ex rel. Horne v. Geo Grp., Inc.,
816 F.3d 1189, 1199 (9th Cir. 2016) (emphasis added), cert.
denied sub nom. Geo Grp., Inc. v. EEOC, 137 S. Ct. 623 (2017).
The Ninth Circuit in Geo Group did not discuss its
earlier ruling in EEOC v. Pierce Packing Co., 669 F.2d 605, 60809 (9th Cir. 1982), which held that “conciliation [is a]
jurisdictional condition[] precedent to suit by the EEOC,” and
7
which affirmed a dismissal for lack of jurisdiction.
But this
court need not wait for an express abrogation of Pierce Packing
by the Ninth Circuit.
See Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc) (indicating that district courts are
not bound by circuit precedent so long as “intervening Supreme
Court authority is clearly irreconcilable with [the] prior
circuit authority”).
The court’s very power to impose a stay
indicates that Congress did not intend the conciliation
requirement to be jurisdictional in nature.
It is a time-
honored principle that “without jurisdiction [a federal] court
cannot proceed at all in any cause.”
Ex parte McCardle, 74 U.S.
(7 Wall.) 506, 515 (1869) (emphasis added).
The statements in
Geo Group and Mach Mining, as well as the statutory
authorization to stay--not dismiss--proceedings following a
failure to conciliate, make it clear that Pierce Packing has
been abrogated and § 2000e-5(f)(1)’s conciliation requirement is
not jurisdictional in nature.
Mach Mining aside, Pierce Packing is also clearly
irreconcilable with an additional line of Supreme Court cases
stating that a clear statement of legislative intent to make a
matter jurisdictional is a threshold requirement for a court’s
conclusion that subject matter jurisdiction is in issue.
the rule announced in 2006 in Arbaugh v. Y&H Corp.,
8
Under
if the Legislature clearly states that a
threshold limitation on a statute’s scope
shall count as jurisdictional, then courts
. . . will not be left to wrestle with the
issue. But when Congress does not rank a
statutory limitation on coverage as
jurisdictional, courts should treat the
restriction as nonjurisdictional in
character.
546 U.S. 500, 515-16; see Erin Morrow Hawley, The Supreme
Court’s Quiet Revolution: Redefining the Meaning of
Jurisdiction, 56 Wm. & M. L. Rev. 2027, 2044 (2015) (identifying
Arbaugh as the origin of the jurisdictional clear statement
rule).
Since Arbaugh, the Supreme Court has advised federal
courts that, in the absence of clear congressional intent, they
should not “lightly attach” the “drastic” consequences that
attend labeling a statutory requirement “jurisdictional.”
Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); see also Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011)
(explaining that the jurisdictional clear statement rule covers
even statutory provisions that are “important and mandatory”).
Under the clear statement rule, which the Supreme
Court announced decades after the Ninth Circuit decided Pierce
Packing, the conciliation requirement is not “an ingredient of
subject-matter jurisdiction.”
514.
See Arbaugh, 546 U.S. at 503,
First, the text of § 2000e-5(f)(1) does not speak in
clearly jurisdictional terms.
Arbaugh noted that another Title
VII provision, which restricted Title VII liability to employers
9
with “fifteen or more employees,” did not speak in clearly
jurisdictional terms.
§ 2000e(b) (2006)).
See 546 U.S. at 504 (quoting 42 U.S.C.
The conciliation provision, like Arbaugh’s
employee-numerosity requirement, does not by its terms “refer in
any way to the jurisdiction of the district courts.”
See 546
U.S. at 502 (quoting Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 394 (1982)).
Compare 42 U.S.C. § 2000e-5(f)(1) (“If
. . . the Commission has been unable to secure from the
respondent a conciliation agreement acceptable to the
Commission, the Commission may bring a civil action.”), and id.
§ 2000e(b) (providing that employers are liable only if they
have “fifteen or more employees”), with id. § 2000e-5(f)(3)
(defining the “jurisdiction” of federal courts under Title VII).
Second, “clear jurisdictional language” appears
elsewhere in Title VII, establishing that Congress knew how to
speak in jurisdictional terms if it so desired.
Thaler, 565 U.S. 134, 142-43 (2012).
See Gonzales v.
Arbaugh noted that the
employee-numerosity requirement “appear[ed] in a separate
provision” of Title VII than the expressly jurisdictional
provision located in § 2000e-5(f)(3).
515 (discussing 42 U.S.C. § 2000e(b)).
See Arbaugh, 546 U.S. at
Similarly, the
conciliation provision is in a separate area of Title VII.
42 U.S.C. § 2000e-5(f)(1), (f)(3); Civil Rights Act of 1964,
See
Pub. L. 88-352 § 706 (e)-(f), 78 Stat. 260-61 (1964).
10
Congressional use of express jurisdictional language elsewhere
in Title VII cautions against reading the conciliation provision
as containing an additional, subtler jurisdictional limitation.
Finally, “context, including [the Supreme] Court's
interpretation of similar provisions in many years past, is
relevant to whether a statute ranks a requirement as
jurisdictional.”
Gonzales, 565 U.S. at 142 n.3 (quoting Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010)).
This
court is unaware of any Supreme Court case deeming a similar
provision jurisdictional.
See EEOC v. Farmers Ins. Co., 24 F.
Supp. 3d 956, 964 (E.D. Cal. 2014) (“[T]here is no long line of
Supreme Court precedent holding that conciliation is the type of
requirement that has historically been treated as jurisdictional
in nature.” (quoting EEOC v. Alia Corp., 842 F. Supp. 2d 1243,
1254 (E.D. Cal. 2012)).
Absent such history, or a clear textual
statement, this court does not deem the conciliation requirement
to be jurisdictional.
In sum, the Ninth Circuit’s 1982 decision in Pierce
Packing is no longer authoritative in light of intervening
authority from two sources: Mach Mining and its progeny (like
the Ninth Circuit’s decision in Geo Group), and the line of
decisions beginning with Arbaugh v. Y&H Corp.
In so concluding,
this court joins other district courts in this circuit.
See,
e.g., EEOC v. Marquez Bros. Int'l Inc., No. 1:17-CV-0044-AWI11
EPG, 2017 WL 4123915, at *3 (E.D. Cal. Sept. 18, 2017) (Ishii,
J.) (holding that “the requirements of Section 2000e-5(f)(1) are
non-jurisdictional”); EEOC v. Evans Fruit Co., 872 F. Supp. 2d
1107, 1115 (E.D. Wash. 2012) (Suko, J.) (“Title VII’s
conciliation requirement, while a precondition to suit, is not
jurisdictional and . . . to the extent EEOC v. Pierce Packing
Co. holds otherwise, it is inconsistent with current Supreme
Court jurisprudence.” (citation omitted)); EEOC v. Alia Corp.,
842 F. Supp. 2d 1243, 1254 (E.D. Cal. 2012) (O’Neill, J.)
(“Pierce Packing . . . has been fatally undermined and can no
longer be reconciled with current Supreme Court
jurisprudence.”).
Satisfied that it has jurisdiction, the court now
addresses whether a stay is appropriate in this case.
IV.
THE COURT DECLINES TO STAY THE PROCEEDINGS.
A.
Standard Governing Defendants’ Stay Request.
“The proponent of a stay bears the burden of
establishing its need.”
Clinton v. Jones, 520 U.S. 681, 708
(1997) (citing Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)).
In Mach Mining, the Supreme Court discussed how a court should
assess a factual dispute concerning conciliation:
If . . . the employer provides credible
evidence of its own . . . indicating that
the EEOC did not provide the requisite
information about the charge or attempt to
engage in a discussion about conciliating
12
the claim, a court must conduct the
factfinding necessary to decide that limited
dispute. Should the court find in favor of
the employer, the appropriate remedy is to
order the EEOC to undertake the mandated
efforts to obtain voluntary compliance. See
§ 2000e-5(f)(1) (authorizing a stay of a
Title VII action for that purpose).
135 S. Ct. at 1656.
If, on the other hand, the employer
provides no credible evidence indicating that the EEOC failed to
conciliate, the court should decline to issue a stay.
See Geo
Grp., 816 F.3d at 1201-02.
B.
Defendants Have Not Put Forward Credible Evidence
Indicating that the EEOC Failed to Conciliate.
There is no dispute that the EEOC has a statutory duty
“to attempt conciliation of a discrimination charge prior to
filing a lawsuit.”
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645,
1651 (2015) (discussing 42 U.S.C. § 2000e-5(b)).
“Only if the
Commission is ‘unable to secure’ an acceptable conciliation
agreement--that is, only if its attempt to conciliate has
failed--may a claim against the employer go forward.”
Id.
(quoting 42 U.S.C. § 2000e-5(f)(1)).
The issue of whether the EEOC conciliated is subject
to judicial review, although such “review is narrow.”
Id. at
1656; see also id. at 1652 (noting that “the statute provides
the EEOC with wide latitude over the conciliation process”).
satisfy its conciliation obligation, the EEOC
13
To
must tell the employer about the claim-essentially, what practice has harmed which
person or class--and must provide the
employer with an opportunity to discuss the
matter in an effort to achieve voluntary
compliance. . . . [Put otherwise,] the EEOC
[must] afford the employer a chance to
discuss and rectify a specified
discriminatory practice.
Id. at 1652-53.
The employer, by contrast, “has no duty at all
to confer or exchange proposals.”
Id. at 1654.
Title VII also requires the EEOC to keep anything
“said or done” during the conciliation process confidential.
U.S.C. § 2000e-5(b).
42
This nondisclosure requirement bars the
agency from using information disclosed during conciliation “as
evidence in a subsequent proceeding without the written consent
of the persons concerned.”
Id.
“[T]o effect a waiver Title VII
requires the ‘written consent of’ . . . not just the employer
but the [employee-]complainant too.”
Mach Mining, 135 S. Ct. at
1655 n.2 (quoting 42 U.S.C. § 2000e-5(b)); see also id.
(explaining that “the employer’s decision to contest the EEOC’s
conciliation efforts cannot waive, by ‘deem[ing]’ or otherwise,
the employee’s statutory rights.” (first alteration in original)
(internal citation omitted)).
The Supreme Court in Mach Mining
was careful to ensure that judicial review of conciliation “can
occur consistent with the statute’s non-disclosure provision,”
holding that a reviewing court should look only “to whether the
EEOC attempted to confer about a charge, and not to what
14
happened (i.e., statements made or positions taken) during those
discussions.”
Id. at 1656.
Apart from these “limited” conciliation obligations,
“Title VII’s conciliation provision smacks of flexibility.”
Id.
The EEOC is not subject to a “good faith” bargaining
requirement.
See id. at 1653-55; see also Geo Grp., 816 F.3d at
1199 (“[T]he EEOC, like any party to litigation, may not
negotiate in good faith.”).
Instead, Title VII gives the agency
“expansive discretion” over how to conduct itself during
conciliation discussions:
[T]he EEOC need only ‘endeavor’ to
conciliate a claim, without having to devote
a set amount of time or resources to that
project. Further, the attempt need not
involve any specific steps or measures;
rather, the Commission may use in each case
whatever ‘informal’ means of ‘conference,
conciliation, and persuasion’ it deems
appropriate. . . . Congress left to the EEOC
such strategic decisions as whether to make
a bare-minimum offer, to lay all its cards
on the table, or to respond to each of an
employer’s counter-offers, however far
afield. So too Congress granted the EEOC
discretion over the pace and duration of
conciliation efforts, the plasticity or
firmness of its negotiating positions, and
the content of its demands for relief. For
a court to assess any of those choices . . .
is not to enforce the law Congress wrote,
but to impose extra procedural requirements.
135 S. Ct. at 1654-55, 1656 (citation omitted) (quoting 42
U.S.C. § 2000e-5(b)).
15
Defendants claim that the EEOC’s conciliation efforts
in this case do not survive even what Mach Mining called
“relatively barebones” judicial review.
18-1, PageID # 76.
See id. at 1656; ECF
Defendants do not dispute the adequacy of
the Complaint’s allegations on this score.
See ECF 1, PageID
# 5 (“All conditions precedent to the institution of this
lawsuit have been fulfilled.”); id. (“The Commission engaged in
[conciliation] communications with Defendants.”); see also Fed.
R. Civ. P. 9(c) (“[I]t suffices [for a Complaint] to allege
generally that all conditions precedent have occurred or been
performed.”).
Instead, Defendants aver that, as a factual
matter, the EEOC only “paid lip service” to the conciliation
requirement.
ECF 18-1, PageID # 76.
To support this
contention, Defendants submit a declaration by Joachim Cox,
Defendants’ counsel of record, and copies of various letters
that Cox sent to the EEOC taking issue with aspects of the
conciliation process.
ECF 18-1, PageID # 76; ECF 18-2; ECF 18-
3; ECF 18-4; ECF 18-5; ECF 18-6.
The EEOC responds that “Defendants’ own documents
reveal that the EEOC engaged Defendants to try and resolve the
alleged discriminatory practice by undertaking written and oral
discussions,” which, in the agency’s view, is all that Mach
Mining requires.
See ECF 20, PageID #s 123-24.
The EEOC also
provided the court with a copy of the Determination Letter that
16
it sent Defendants and a declaration of its own.
ECF 20-2.
See ECF 20-1;
The EEOC declined to submit any other evidence,
citing the statutory nondisclosure provision.
ECF 20, PageID
# 123 n.2; see 42 U.S.C. § 2000e-5(b)(1).
The parties do not contest the authenticity of each
other’s submissions; they only dispute their legal significance.
See ECF 18; ECF 20; ECF 21.
This court recognizes that the
EEOC, pursuant to its nondisclosure obligations, may have
withheld certain communications concerning the substance of
conciliation discussions.
That may hamper the EEOC’s ability to
dispute Defendants’ characterization of the conciliation
process.
See ECF-1, PageID #s 81-82 (characterizing
conciliation discussions as, in Defendants’ view, an EEOC
attempt “to extract a monetary settlement”); ECF 20, PageID
# 123 n.2 (explaining that the EEOC “cannot provide” any
communications divulging what was “said or done during”
conciliation (citing 42 U.S.C. § 2000e-5(b))).
But even
assuming that the EEOC would, if it could, dispute Defendants’
account of these discussions, any such dispute would be
immaterial.
As Mach Mining explained, judicial review of
conciliation efforts concerns only “whether the EEOC attempted
to confer about a charge, and not . . . what happened (i.e.,
statements made or positions taken) during those discussions.”
135 S. Ct. at 1656.
Even if the EEOC has refrained from
17
disputing Defendants’ account, it is relying on “Defendants’ own
documents” as establishing that the EEOC did indeed engage in
conciliation.
See ECF 20, PageID #s 123-24.
After reviewing the evidence, which is discussed in
detail below, the court determines that Defendants failed to
“provide[] credible evidence . . . indicating that the EEOC did
not provide the requisite information about the charge or
attempt to engage in a discussion about conciliating the claim.”
Mach Mining, 135 S. Ct. at 1656.
The court denies the stay
request.
1.
The EEOC’s Determination Letter.
A Determination Letter sent by the EEOC to Defendants
on May 26, 2017, stated that Ryan Vicari (the “Charging Party)
had “allege[d] that [Defendants] refused to hire him because of
his disability, in violation of the ADA.”
#s 136-37.
ECF 20-2, PageID
The Letter said that the EEOC had investigated
Vicari’s charge and “determined that there is reasonable cause
to believe that the Charging Party was denied hire because of a
disability as defined under the ADA.”
Id. at PageID # 136.
The
Commission also “determined Defendants failed to provide a
reasonable accommodation to Charging Party because of a
disability, as defined under the ADA.
Further, the Commission
found that Charging Party was denied hire based on a perceived
disability.”
Id. at PageID # 136-37.
18
On the topic of
conciliation, the Letter invited Defendants and Vicari “to join
with [the EEOC] in a collective effort toward a just resolution
of this matter,” explaining that Investigator Kris Kaopuiki
would contact Defendants shortly “to begin conciliation
discussions.”
Id. at PageID # 137.
2.
Letters from Defendants to the EEOC.
Defendants furnished four communications sent by
Joachim P. Cox, their counsel of record, to Kris Kaopuiki of the
EEOC.
ECF 18-3; ECF 18-4; ECF 18-5; ECF 18-6.
a.
June 14 Email from Cox to Kaopuiki.
An email from Cox dated June 14, 2017, stated that he
and Kaopuiki had spoken on the phone “th[at] afternoon” and had
agreed to “continue to discuss issues related to the EEOC’s
letter of determination.”
ECF 18-3, PageID # 91.
Cox wrote
that Defendants, in the upcoming discussions,
expect[] to be provided more information
from the EEOC as to what was expected to
have occurred [during the interview with
Ryan Vicari] in order to satisfy an inquiry
into the potential for a reasonable
accommodation related to Mr. Vicari . . .
[and also expect] more information from the
EEOC in regard to what reasonable
accommodation is believed to have been
available in this matter and/or overlooked
by [Defendants].
Id.
19
b.
June 22 Letter from Cox to Kaopuiki.
On June 22, 2017, Cox sent Kaopuiki a letter
responding to a prior EEOC “letter, dated June 21st.” 2
PageID # 93.
ECF 18-4,
Cox took issue with the EEOC’s claim that
Defendants had “failed to provide a reasonable accommodation to
Charging Party because of a disability.”
Id. at PageID # 94.
Cox responded that “it is apparent that EEOC has not yet
satisfied its investigative role” and insisted that,
in order to fairly and accurately assess the
allegations made by Mr. Vicari, EEOC needs
to be in a position to answer, at a minimum:
(1) What inquiry, in regard to potential
reasonable accommodations, is expected of
Cutter Mazda? (2) How is it that Cutter
Mazda did not satisfy any expected inquiry
into the potential for reasonable
accommodations? and (3) What were the
reasonable accommodations that were
allegedly overlooked by Cutter Mazda?
Id.
Cox explained that, in asking these questions, he sought
“the factual basis” for the EEOC’s “merits determination.”
Id.
On the issue of conciliation, Cox wrote that Defendants were
“not in a position to consider resolution without an
understanding of what it is that allegedly was done wrong or
could have been done correctly,” and again “requested that the
EEOC provide its factual basis for the conclusion that a
violation occurred.”
Id.
2
Neither party submitted a copy of this letter or any other
substantive communication sent by the EEOC to Defendants, aside
from the EEOC’s Determination Letter.
20
c.
June 28 Letter from Cox to Kaopuiki.
On June 28, 2017, Cox responded to another EEOC
“letter, dated June 28th.”
ECF 18-5, PageID # 95.
Cox said he
had submitted this letter “in furtherance of prompt settlement
and resolution . . . in light of the EEOC’s . . . primary
statutory goals of resolution of employment claims through
investigation, conciliation and mediation.”
n.1.
Id. at PageID # 95
Cox, in an apparent reference to Title VII’s nondisclosure
provision, warned the agency that “[t]he information in this
letter may not be disclosed by [the EEOC] to any private party
without [Defendants’] prior consent.”
Id.
Cox took issue with the EEOC’s alleged refusal to
“respond to requests for” the “facts supporting its [reasonable
cause] determination,” and argued that the EEOC had thereby
“remove[d] from Cutter Mazda the opportunity to engage in the
conciliation and resolution process.”
Id. at PageID # 96.
Cox
disagreed with the EEOC’s “suggestions,” evidently set forth in
an earlier communication, that 1) the Determination Letter
“‘outlined the basis’ for the EEOC’s [merits] determination,”
and 2) Defendants were “aware of the factual basis of the EEOC’s
finding” given their “cooperation in responding to . . .
requests for information and interviews.”
(internal citation omitted).
Id. at PageID # 95
Cox argued that the EEOC, by
failing to answer his questions, had “abandon[ed] its mandate to
21
fairly and accurately assess the allegations”; he “urge[d] the
EEOC to first satisfy its investigative role and then allow
Cutter Mazda to appropriately participate in the conciliatory
process.”
Id. at PageID # 96.
d.
July 3 Letter from Cox to Kaopuiki.
Cox sent a letter Kaopuiki dated July 3, 2017, which
responds to a prior EEOC “letter, dated June 29th.”
PageID # 98.
ECF 18-6,
Cox reiterated that “Cutter Mazda wants . . . the
information EEOC relied upon in support of its determination”;
“a fair investigation”; “and then, if needed, the full
conciliation opportunity allowed by law.”
Id.
Cox again noted
that his letter was “submitted in furtherance of prompt
settlement and resolution of the charge . . . in light of the
EEOC’s . . . primary statutory goals of resolution of employment
claims through investigation, conciliation and mediation,” and
warned that the agency could not disclose its contents.
Id. at
PageID #s 98-99.
3.
Declaration of Eric Yau, EEOC Trial
Attorney.
Eric Yau submitted a short declaration stating that
the EEOC had issued a “Conciliation Fail Letter on July 18, 2017
informing Defendants that efforts to conciliate the Charge
referenced in the [Determination Letter] have failed.”
1, PageID # 135.
The court does not have a copy of the
22
ECF 20-
Conciliation Fail Letter.
4.
Declaration of Joachim P. Cox, Defendants’
Counsel of Record.
Cox’s declaration discusses the EEOC’s investigation
into Vicari’s charge and the parties’ subsequent conciliation
efforts.
ECF 18-2.
Cox avers that in “March 2016, EEOC’s local
office interviewed Guy Tsurumaki, the Assistant Service Manager
who had [originally] interviewed Mr. Vicari.”
# 88.
Id. at PageID
Defendants “allowed Mr. Tsurumaki to be re-interviewed in
February 2017.”
Id.
Later, during “the conciliatory process,” Defendants
requested the “factual basis for [the EEOC’s] allegations,”
including:
1. What information, in regard to potential
reasonable accommodations, is expected of
Cutter Mazda?
2. How is it that Cutter Mazda did not
satisfy any expected inquiry into the
potential for any reasonable accommodation?
3. What were the reasonable accommodations
that were allegedly overlooked by Cutter
Mazda?
Id. at PageID # 89.
Cox avers that this information “was
necessary for Defendants to evaluate not only the reasonableness
of the EEOC’s demand [for settlement] but also to allow
Defendants to endeavor within the conciliatory process to
eliminate any such alleged wrongdoing.”
Id.
According to Cox,
the EEOC had “refused to provide Defendants with any of the
23
requested information” and instead had “repeatedly demanded that
Defendants provide it with a counteroffer.”
Id.
“Eventually,
the EEOC summarily rejected Defendants’ further efforts [to
obtain the requested information] and . . . summarily ended the
conciliatory process.”
5.
Id.
The Legal Import of the Parties’ Evidence.
The court agrees with the EEOC that the record,
including Defendants’ own documents, establishes that the EEOC’s
conciliation efforts satisfied Mach Mining.
#s 123-24.
See ECF 20, PageID
A stay is therefore not warranted.
The documents establish that the EEOC told Defendants
“about the claim.”
See Mach Mining, 135 S. Ct. at 1652.
As the
Supreme Court explained, before bringing suit “the EEOC must
inform the employer about the specific allegation”-“describ[ing] both what the employer has done and which
employees . . . have suffered as a result,” which “it typically
does in a letter announcing its determination of ‘reasonable
cause.’”
Id. at 1655-56.
The EEOC’s Determination Letter to
Defendants states that “Ryan Vicari” “alleged that [Defendants]
refused to hire him because of his disability,” and 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 #s 136-37.
Additional letters,
sent by Defendants’ counsel, indicate that Defendants were
24
aware, based on additional discussions with the EEOC, that the
dispute concerned what had happened 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.
Defendants were sufficiently on notice about the claim.
Defendants’ desire for a more detailed “factual basis”
underlying the EEOC’s reasonable cause determination does not
alter the analysis.
Mach Mining expressly held that the EEOC
has no obligation to “lay out ‘the factual and legal basis for’
all its positions.”
135 S. Ct. at 1653-54 (citation omitted).
Such a requirement, the Supreme Court explained, “conflict[s]
with the latitude Title VII gives the Commission” insofar as
“Congress left to the EEOC such strategic decisions as whether
to lay all its cards on the table.”
Id. at 1654.
The EEOC did
not have to tell Defendants why the investigation culminated in
the reasonable cause determination; it only had to--and did-describe what it thought “the employer ha[d] done” and who
“ha[d] suffered as a result.”
See id. at 1656.
The letters and affidavits also indicate that the EEOC
“afford[ed] the employer a chance to discuss and rectify [the]
specified discriminatory practice.”
Id. at 1653.
Under Mach
Mining, the EEOC had to “try and engage the employer in some
form of discussion (whether written or oral), so as to give the
employer an opportunity to remedy the alleged discriminatory
25
practice.”
Id. at 1656.
The evidence establishes that “some
form of discussion” took place between the EEOC and Defendants.
Cox’s June 14 email states that he and Kaopuiki had, that very
day, “discuss[ed] issues related to the EEOC’s letter of
determination.”
ECF 18-3, PageID # 91.
Cox also wrote that
Defendants “expect[] to be provided more information from the
EEOC as to what was expected to have occurred” during the
interview with Vicari.
Id. (emphasis added).
Additional Cox
letters indicate that the EEOC sent follow-up communications
dated, respectively, “June 21st,” “June 28th,” and “June 29th.”
ECF 18-4, PageID # 93; ECF 18-5, PageID # 95; ECF 18-6, PageID
# 98.
Cox’s letters clearly concern the EEOC’s reasonable
cause determination.
See, e.g., ECF 18-4, PageID # 93
(disputing the EEOC’s determination that Defendants “failed to
provide a reasonable accommodation to Charging Party because of
a disability”); ECF 18-5, PageID # 96 (asking the EEOC for
“facts supporting its determination”).
Cox’s letters even
suggest that Defendants understood that they were in the middle
of the conciliation process; two of the letters invoke the
EEOC’s nondisclosure obligation over communications exchanged
during conciliation.
See 42 U.S.C. § 2000e-5(b); ECF 18-5,
PageID # 95 n.1 (“The information presented in this letter is
submitted in furtherance of prompt settlement and resolution of
26
the charge . . . in light of the EEOC’s . . . statutory goals of
resolution of employment claims through investigation,
conciliation and mediation.
The information in this letter may
not be disclosed by [the EEOC] to any private party without
[Defendants’] prior consent.”); ECF 18-6, PageID # 98 n.1
(same).
In short, Cox’s letters do not indicate that the EEOC
failed to discuss the discrimination claim with Defendants; they
affirmatively suggest that the EEOC engaged Defendants in
conciliation discussions.
The evidence also indicates that the EEOC gave
Defendants “an opportunity to remedy the alleged discriminatory
practice.”
See Mach Mining, 135 S. Ct. at 1656.
Mach Mining
permitted an “offer-counteroffer” strategy, rejecting the idea
that the Commission “must refrain from making ‘take-it-or-leaveit’ offers,” and explaining that “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,
however far afield.”
Id. at 1654-55.
In his declaration, Cox avers that the EEOC
“repeatedly demanded that Defendants provide it with a
counteroffer.”
ECF 18-2, PageID # 89.
Cox’s reference to a
“counteroffer” implies that the EEOC also “offered” to settle
the claim on undisclosed terms.
See id.; see also ECF 18-1,
PageID #s 81-82 (describing the EEOC’s conciliation behavior as
27
an attempt “to extract a monetary settlement”).
Cox’s June 22
letter indicates that Defendants declined the EEOC proposal, as
he writes in response to an earlier EEOC communication that
Defendants were “not in a position to consider resolution
without . . . the EEOC provid[ing] its factual basis for the
conclusion that a violation occurred.”
ECF 18-4, PageID # 94. 3
The EEOC offer referenced in Cox’s affidavit appears to have
provided Defendants with an “opportunity” to address the alleged
discrimination.
See Mach Mining, 135 S. Ct. at 1656.
It does
not matter that Defendants declined to respond with an offer of
their own.
See id. at 1654 (explaining that the employer “has
no duty at all to confer or exchange proposals”).
Given the submissions before it, this court concludes
that Defendants have failed to carry their burden of providing
“credible evidence” indicating a lack of conciliation.
Mining, 135 S. Ct. at 1656.
See Mach
The court’s determination gains
further support from the Ninth Circuit’s 2016 decision in Geo
Group, which held that the EEOC “sufficiently conciliated” “in
light of Mach Mining” under the following circumstances:
The EEOC . . . invited Geo to conciliate
[various sex discrimination claims] in [its]
Reasonable Cause Determinations.
Additionally, the EEOC . . . conveyed a
3
While an employer may refuse an offer made by the EEOC on this
or any other basis, the EEOC, for reasons already explained, is
not required to disclose the facts underlying its reasonable
cause determination during conciliation discussions.
28
conciliation letter to Geo that outlined a
proposal to settle Alice Hancock’s charge of
discrimination and the claims of other
aggrieved employees of Geo. The letter
proposed damages for Ms. Hancock, a class
fund for unidentified class members, and
injunctive relief.
Plaintiffs and Geo [discussed the claims at]
a joint conciliation session. During the
conciliation session, Geo made a
counteroffer as to [one Charging Party] but
did not make a counteroffer as to [the
class-based demand]. Geo asked Plaintiffs to
identify the unidentified class members but
they declined to do so. Geo also proposed a
separate settlement with the EEOC . . .
which [was] rejected. Ultimately the
conciliation was unsuccessful.
816 F.3d at 1196.
Here, as in Geo Group, the evidence indicates
that 1) the EEOC invited the employer to conciliate through a
Determination Letter; 2) the EEOC and the employer discussed the
reasonable cause determination; and 3) the EEOC offered to
settle the charge of discrimination by proposing a settlement
involving monetary damages.
See id. at 1196.
Mach Mining and
Geo Group do not require more.
Defendants insist that their evidence still tends to
show a lack of conciliation, because, in their view, a monetary
settlement offer cannot qualify as a remediation opportunity.
See 18-1, PageID #s 81-82 (arguing that the “purpose of the
conciliation process is to effect voluntary compliance, not to
extract a monetary settlement from the employer”).
Defendants
forget that “voluntary” compliance does not mean “free”
29
compliance.
A monetary settlement is, indisputably, a
permissible way to “remedy [an] alleged discriminatory
practice.”
See Mach Mining, 135 S. Ct. at 1656; see also, e.g.,
42 U.S.C. § 2000e-5(g)(1) (authorizing “back pay” in response to
an “unlawful employment practice”).
Both Mach Mining and Geo
Group observed, without concern, that the EEOC might make a
“monetary request” during conciliation discussions.
Mach
Mining, 135 S. Ct. at 1654; Geo Grp., 816 F.3d at 1199.
An employer’s distaste for a financial settlement is
not, in any event, subject to judicial review.
As the Supreme
Court explained, 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.”
(emphasis added).
Mach Mining, 135 S. Ct. at 1655
“For a court to assess any of those choices
. . . is not to enforce the law Congress wrote, but to impose
extra procedural requirements.”
Id.
Defendants’ money-isn’t-conciliation argument suffers
from another serious defect.
Reviewing whether the EEOC did, in
fact, demand a financial counteroffer from Defendants requires
an inquiry into what the Supreme Court has forbidden: “what
happened (i.e., statements made or positions taken) during
[conciliation] discussions.”
See id. at 1656.
If this court
accepted such an argument, conciliation review could no longer
30
occur “consistent with [Title VII’s] non-disclosure provision.”
See id.
The EEOC would, in certain cases, be forced into a
Hobson’s choice: either violate its nondisclosure obligation, or
allow a potentially untrue allegation to stand unchallenged.
See 42 U.S.C. § 2000e-5(b) (“Nothing said or done during and as
part of such informal [conciliation] may be made public by the
Commission.” (emphasis added)); see also Mach Mining, 135 S. Ct.
at 1655 n.2 (explaining that employer waivers cannot always
solve the problem, because the EEOC must still obtain a waiver
from the charging employee).
To avoid a conundrum of this
nature, this court declines to accept Defendants’ argument,
which turns on the nature of the EEOC’s conciliation demands.
Defendants alternatively argue that they “were not
allowed the opportunity to remedy the alleged discrimination”
because the EEOC did not give them “any information as to what,
specifically, Defendants did wrong.”
ECF 18, PageID # 82.
This
argument, to the extent that it is not contradicted by the
evidence, is simply a reprisal of Defendants’ claim that the
EEOC was required to give them “the factual basis” behind the
reasonable cause determination.
Defendants’ assertion, as this
court has already explained, conflicts with Mach Mining’s narrow
view of the EEOC’s conciliation obligations.
Defendants also argue that they are entitled to a stay
because the EEOC failed to “submit an affidavit” indicating that
31
it met its conciliation obligations.
ECF 21, PageID # 146
(citing Mach Mining, 135 S. Ct. at 1656).
Defendants are
mistaken in reading such a requirement into Mach Mining; they
transform a (usually) sufficient condition into a necessary one.
Mach Mining said: “A sworn affidavit from the EEOC stating that
it has performed the obligations noted above but that its
efforts have failed will usually suffice to show that it has met
the conciliation requirement.”
added)).
135 S. Ct. at 1656 (emphasis
The opinion nowhere states that such an affidavit is
required, especially when, as here, ample other evidence
indicates that the EEOC conciliated.
Additionally, requiring
the EEOC to aver what is already evidenced, on pain of a stay,
would eviscerate the typical requirement that “[t]he proponent
of a stay bears the burden of establishing its need.”
Clinton
v. Jones, 520 U.S. 681, 708 (1997) (citing Landis v. N. Am. Co.,
299 U.S. 248, 255 (1936)).
In sum, a stay is not warranted because Defendants did
not produce “credible evidence . . . indicating that the EEOC
did not” conciliate.
See Mach Mining, 135 S. Ct. at 1656.
And
even if the burden of proof or production at this stage in the
proceedings were allocated to the EEOC, the Commission properly
relied on both the Determination Letter and what “Defendants’
own documents reveal,” which is that the EEOC did conciliate.
See ECF 20, PageID #s 123-24.
The EEOC’s reliance in part on
32
Defendants’ letters and affidavits is consistent with Mach
Mining’s warning that a reviewing court “needs more” than
“bookend letters” to find in favor of the Commission.
Ct. at 1653 (quotation marks omitted).
135 S.
The court declines to
issue a stay.
V.
THE COURT DISMISSES THE COMPLAINT FOR FAILURE TO STATE
A CLAIM.
A.
Standard Under Rule 12(b)(6).
Defendants have also moved to dismiss the Complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Dismissal under Rule 12(b)(6) may be based on either: (1) lack
of a cognizable legal theory, or (2) insufficient facts under a
cognizable legal theory.
Balistreri v. Pacifica Police Dept.,
901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v. Dean
Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir. 1984)).
To survive a Rule 12(b)(6) motion to dismiss, a complaint’s
“[f]actual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted); accord Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.”).
33
The court takes all allegations of material fact as
true, construes them in the light most favorable to the
nonmoving party, and then evaluates whether the complaint
“state[s] a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570; Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001); Syntex Corp. Sec. Litig., 95 F.3d
922, 926 (9th Cir. 1996).
“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Iqbal, 556 U.S. at 678.
Conclusory
allegations of law, unwarranted deductions of fact, and
unreasonable inferences are insufficient to defeat a motion to
dismiss.
Sprewell, 266 F.3d at 988; Syntex Corp. Sec. Litig.,
95 F.3d at 926.
The court’s review is generally limited to the
contents of the complaint.
Sprewell, 266 F.3d at 988;
Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996).
If
matters outside the pleadings are considered, the Rule 12(b)(6)
motion is treated as one for summary judgment.
See Keams v.
Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997);
Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).
The
court may “consider certain materials--documents attached to the
complaint, documents incorporated by reference in the complaint,
or matters of judicial notice–-without converting the motion to
34
dismiss into a motion for summary judgment.”
United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
B.
The Complaint Fails to Allege Facts Tending to
Show that Vicari is a Qualified Individual.
The ADA prohibits employers from discriminating
against a job applicant because of his or her disability.
U.S.C. § 12112(a).
42
To establish a prima facie case of job
discrimination, a plaintiff must typically show that “(1) he is
a disabled person within the meaning of the statute; (2) he is a
qualified individual with a disability; and (3) he suffered an
adverse employment action because of his disability.”
Hutton v.
Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001); see
also Lambdin v. Marriott Resorts, Civ. No. 14-00345 SOM/KSC,
2015 WL 263569, at *2 (D. Haw. Jan. 21, 2015) (Mollway, J.).
A
qualified individual is “an individual who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individual holds or desires.”
42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(m) (explaining
that a qualified individual is one who has “the requisite skill,
experience, education, and other job-related requirements of the
employment position” he seeks).
The necessary elements of an ADA claim can differ
based on context, in part because a prime facie case “is an
evidentiary standard, not a pleading requirement.”
35
Lambdin,
2015 WL 263569 at *2 n.1 (quoting Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510 (2002)).
An ADA plaintiff is not strictly
bound by the elements of the prima facie case, although “those
elements are [still] a useful tool in assessing whether” a
complaint “meets the requirement in Rule 8(a) of the Federal
Rules of Civil Procedure.”
Id.
In other words, while an ADA
complaint “need not include any magical invocation of ‘prima
face case’ language to satisfy Rule 8, . . . [it still] cannot
leave [the] opponent and the court with no information at all
about whether or how [the affected individual] falls under the
ADA.”
Id. at *3.
The EEOC’s Complaint asserts that Defendants violated
the ADA by “failing to hire Charging Party based on his actual
disability (hearing impairment) . . . [and] his perceived
disability.”
Id. at PageID # 5.
The Complaint contains only
one factual paragraph bolstering this assertion:
Charging Party applied for [a] detailer
position with Defendants on June 24, 2015.
Charging Party was interviewed on or about
the same day by Defendants. During the
interview, Defendants were informed that
Charging Party is hearing impaired and can
read lips. In response, Defendants stated
they could not hire Charging Party because
he was deaf and ended the interview.
Consequently, Charging Party was not
considered and/or hired for the detailer
position and/or any other position with
Defendants.
Id. at PageID # 6.
36
These spartan factual allegations, as Defendants point
out, contain no facts tending to show that Vicari is a qualified
individual under the ADA.
See ECF 18-1, PageID # 85.
The
Complaint only alleges that Vicari, a “hearing impair[ed]”
individual, was not hired as a “detailer.”
6.
ECF 1, PageID #s 5-
The court is left with no way to evaluate what the “job-
related requirements of the [detailer] position” were or whether
Vicari was capable of “perform[ing]” them.
See 29 C.F.R.
§ 1630.2(m).
In Lambdin, this court had before it a complaint that
was similarly “devoid of any allegation relating to whether [the
plaintiff] is capable of performing the essential functions of
[the] position.”
2015 WL 263569 at *3.
This court explained
that “[t]he absence of allegations going to such basic matters
weighs in favor of dismissal.”
in a similar analysis.
Id.
Other courts have engaged
See, e.g., Garcia v. Durham & Bates
Agencies, Inc., No. 3:14-CV-00220-SI, 2014 WL 3746521, at *3 (D.
Or. July 29, 2014) (dismissing an ADA claim in part because of
the absence of allegations indicating that the plaintiff was a
qualified individual); Reyes v. Fircrest Sch., No. C11–0778JLR,
2012 WL 5878243, at *3 (W.D. Wash. Nov. 21, 2012) (same); White
v. Gordon, No. CV 11-775-PHX-JAT, 2012 WL 2376464, at *3 (D.
Ariz. June 22, 2012) (same); Goodmon v. Big O Tires, Inc., No.
110CV0550 OWW DLB, 2010 WL 1416680, at *2 (E.D. Cal. Apr. 8,
37
2010) (same); Rodriguez v. John Muir Med. Ctr., No. C 09-0731
CW, 2010 WL 1002641, at *3 (N.D. Cal. Mar. 18, 2010) (same).
The EEOC asks this court to rule that the “failure to
adequately plead that a Charging Party is a qualified individual
alone is [not] sufficient to warrant the grant of a motion to
dismiss.”
ECF 20, PageID # 130 (emphasis).
The EEOC argues
that to specifically require such allegations in an ADA
complaint is to “ignore that a prima facie case is an
evidentiary standard, like direct evidence.”
Id. at PageID
# 129.
In support of its view that no allegation of
qualification is required, the EEOC points to Bunch v. Lake, No.
15 C 6603, 2016 WL 1011513 (N.D. Ill. Mar. 14, 2016), which
suggested that, as a matter of Seventh Circuit law, “all [an
ADA] plaintiff need allege is that he was turned down for a job
because of his disability.”
Id. at *4 (quoting Dixon v. CMS,
No. 14 C 4986, 2015 WL 6701771, at *2 (N.D. Ill. Nov. 3, 2015)).
The EEOC, in other words, seeks a bright line rule to the effect
that an ADA plaintiff need not ever plead facts tending to show
that he or she is a qualified individual.
The court declines to adopt the EEOC’s minimalist view
of its pleading obligations.
The evidentiary nature of the
prima facie case standard does not mean that there are no
pleading obligations whatsoever related to the qualified
38
individual element.
To the extent that the EEOC reads Bunch v.
Lake as suggesting otherwise, that case is not controlling.
As the Supreme Court explained in Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 511-12 (2002), pleading obligations
under the prima facie standard are relaxed only to the extent
that a plaintiff would otherwise have “to plead more facts than
he may ultimately need to prove to succeed on the merits.”
See
also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(explaining that Swierkiewicz “did not change the law of
pleading,” but “simply re-emphasized” that a plaintiff need not
allege facts “beyond those necessary to state his claim”).
Under Swierkiewicz, if the context of a discrimination
case renders proof of qualified individual status unnecessary to
state a discrimination claim, the plaintiff no longer needs to
plead facts related to that element.
See 534 U.S. at 511-12.
But if the qualified individual element remains a necessary
component of the claim--as in most ADA cases--the plaintiff must
still plead some facts tending to prove that element.
See,
e.g., Cohon ex rel. Bass v. New Mexico Dep't of Health, 646 F.3d
717, 725 (10th Cir. 2011) (“To state a claim under [the ADA],
the plaintiff must allege that . . . [s]he is a qualified
individual with a disability . . . .” (second alteration in
original) (quoting Robertson v. Las Animas Cty. Sherrif’s Dept.,
500 F.3d 1185, 1193 (10th Cir. 2007)); Fulton v. Goord, 591 F.3d
39
37, 43 (2d Cir. 2009) (“To state a prima facie claim under []
the ADA . . . Fulton must allege . . . that [s]he is a
‘qualified individual’ with a disability . . . .” (second
alteration in original) (quoting Hargrave v. Vermont, 340 F.3d
27, 34-35 (2d. Cir. 2003)); Toledo v. Sanchez, 454 F.3d 24, 31
(1st Cir. 2006) (“To state a claim for a violation of [the ADA,]
a plaintiff must allege . . . that he is a qualified individual
with a disability . . . .”); Kelley v. Corr. Corp. of Am., 750
F. Supp. 2d 1132, 1139 (E.D. Cal. 2010) (“Plaintiff’s first
claim for relief alleges no facts at all to indicate whether
Plaintiff is a qualified individual or what the essential
elements of her job are or what the essential elements of an
alternative job might be.
For that reason Plaintiff’s first
claim for relief will be dismissed with leave to amend.”); Palma
v. County of Stanislaus, No. 1:17-CV-0819 AWI EPG, 2017 WL
6513282, at *5 (E.D. Cal. Dec. 20, 2017) (“In order to proceed
with this suit, the parties (and the Court) must be made aware
of . . . whether Plaintiff was indeed qualified to perform the
requisite tasks.
Because the Complaint does not do so, a
necessary element is not plausibly plead.” (citation omitted));
cf. Taylor v. Health, 675 F. App’x 676, 677 (9th Cir. 2017)
(granting summary judgment because plaintiff “did not present
evidence that she could perform the essential functions of the
[] job without accommodation”).
40
In this case, there is no indication that requiring
some allegation going to the qualified individual element would
be imposing a burden greater than the law requires.
Cf., e.g.,
Taylor, 675 F. App’x at 678 (explaining that ADA plaintiffs
“need not prove that they are qualified individuals . . . in
order to bring claims challenging the scope of medical
examinations under the ADA” (quoting Fredenburg v. Contra Costa
Cty. Dep't of Health, 172 F.3d 1176, 1182 (9th Cir. 1999)).
At
the hearing on the present motion, the EEOC noted that it was
relying on direct evidence of disability discrimination.
But
even in a direct evidence case, an individual claimant must be a
qualified individual.
See, e.g., McCarthy v. Brennan, No. 15-
CV-03308-JSC, 2016 WL 946099, at *4 (N.D. Cal. Mar. 14, 2016)
(explaining that an allegation amounting to “direct evidence of
discrimination” speaks to the element of whether “the employer
treated [the plaintiff] differently because of his membership in
the protected class,” not to the qualified individual element).
The EEOC’s Complaint must allege some facts tending to show that
Vicari is a qualified individual.
Because it fails to do so, it
must be dismissed.
The EEOC, taking a different tactic, has also asked
the court to take judicial notice that a “detailer position”
with Defendants “involves cleaning cars” and “does not require
specialized skills.”
ECF 20, PageID # 131.
41
The court has no
basis on the present record for determining that this is a
“generally known” matter.
Fed. R. Evid. 201.
And even if the
court were to take judicial notice of this fact, the Complaint
has still failed to allege any facts regarding whether Vicari is
qualified for this position.
See ECF 1, PageID # 5.
The EEOC
is free to allege such facts in an Amended Complaint.
The court dismisses the EEOC’s Complaint with leave to
amend to correct any pleading defects.
In light of its
disposition, the court does not reach Defendants’ alternative
argument that the Complaint is defective because it is “unclear
what specific subsection of 42 U.S.C. § 12112(b) Defendants
allegedly violated in the first instance.”
ECF 18-1, PageID
# 84.
VI.
CONCLUSION.
The court DENIES Defendants’ request for a stay and
GRANTS Defendants’ motion to dismiss.
No later than February
14, 2018, the EEOC may file an Amended Complaint addressing the
deficiencies noted in the present order.
42
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 24, 2018.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
U.S. Equal Employment Opportunity Commission v. MJC, Inc. et
al., Civ. No. 17-00371 SOM-RLP; ORDER DENYING DEFENDANTS’ MOTION
TO STAY PLAINTIFF’S COMPLAINT FOR FAILURE TO SATISFY 42 U.S.C.
§ 2000e-5, AND GRANTING DEFENDANTS’ MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM.
43
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