NASSERIZAFAR v. INDOT
Filing
25
ENTRY ON PLAINTIFF'S MOTION TO VACATE AND RECUSE: For the foregoing reasons, the Plaintiff's motion to vacate and recuse is DENIED. The Plaintiff having failed to come forward with additional facts to support his Title VII claim, final judgment shall now issue ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 3/28/2013. Copy sent to Bahram Nasserizafar via US Mail.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BAHRAM NASSERIZAFAR,
Plaintiff,
vs.
INDOT,
Defendant.
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Cause No. 1:12-cv-1534-WTL-DKL
ENTRY ON PLAINTIFF’S MOTION TO VACATE AND RECUSE
This Cause is before the Court on the Plaintiff’s Motion to Vacate and Recuse (docket no.
24). In this motion, the Plaintiff requests that the Court vacate its Entry on the Defendant’s
motion to dismiss and the undersigned recuse himself – and disqualify Magistrate Judge Denise
K. LaRue – on the basis of alleged bias against the Plaintiff. The Court rules as follows.
I.
STANDARD
Under 28 U.S.C. § 144, “[w]henever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to hear such proceeding.”
In the same vein, any judge of the United States “shall disqualify himself in any
proceeding in which his impartiality might be reasonably questioned.” 28 U.S.C. § 544. This
provision recognizes that “[a] judge shall uphold and promote the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
Model Code of Judicial Conduct Canon 1.
II.
BACKGROUND
On March 1, 2013, this Court granted the Defendant’s motion to dismiss as to each count
alleged by Plaintiff Bahram Nasserizafar. Mr. Nasserizafar’s claims stemmed from an alleged
hostile working environment at INDOT, where Mr. Nasserizafar worked for nearly twenty-four
years.1 Mr. Nasserizafar alleged that INDOT violated his civil rights as embodied in the
Americans with Disabilities Act; 42 U.S.C. § 1981; 18 U.S.C. § 242; the Equal Pay Act of 1963;
and Title VII of the Civil Rights Act of 1964. The Court dismissed all but the Title VII claim
with prejudice; as to the Title VII claim, Mr. Nasserizafar was afforded the opportunity to amend
his complaint to allege additional facts supporting his Title VII claim. Mr. Nasserizafar’s initial
complaint alleged discrimination on the basis of his national origin, Iranian, but he pointed to
only one incident that even arguably took on a discriminatory tone: in summer 1990 during
Desert Storm, Mr. Nasserizafar’s former supervisor, Mr. Andrewski, shouted, “We should nuke
Iran and Iraq both!” In the instant motion, Mr. Nasserizafar points to an additional fact in support
of his national origin claim, which is addressed below. In addition, Mr. Nasserizafar takes issue
with the Court’s Entry and points to specific sections that he alleges are evidence of the Court’s
prejudice against the Plaintiff and favor of the Defendant.2
III.
DISCUSSION
A. Recusal
Mr. Nasserizafar argues that, under § 144, the Court has no discretion to deny the motion
to disqualify because Mr. Nasserizafar has filed an affidavit questioning its impartiality. Recusal
1
The Court’s initial Entry provided that Mr. Nasserizafar continued to be employed by
INDOT. Mr. Nasserizafar clarifies in the instant motion that his employment with INDOT was
terminated on January 14, 2013.
2
The Court notes that Mr. Nasserizafar also seeks the disqualification of Magistrate
Judge LaRue, although Mr. Nasserizafar has pointed to no evidence that Judge LaRue is
prejudiced against him. It seems she must be guilty by association with me. However, this
superficial basis is insufficient to warrant disqualification.
2
under § 144 is mandatory, but not automatic. This means that, while the Court must assume the
truth of the facts stated in the affidavit, it may nevertheless assess the affidavit’s legal
sufficiency. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993). “[T]he facts averred must
be sufficiently definite and particular to convince a reasonable person that bias exists; simple
conclusions, opinions, or rumors are insufficient. . . . The affidavit also must show that the bias is
personal rather than judicial, and that it stems from an extrajudicial source—some source other
than what the judge has learned through participation in the case.” Id. The statute must be strictly
construed to prevent abuse. Id.
With this standard in mind, the Court turns to the facts averred in Mr. Nasserizafar’s
affidavit:
1.
The Court did not respond to his question whether it was “against the law to tamper and
or modify an employee’s record during an EEOC investigating charges without his or her
consent.”
2.
The Court is obligated to rule on the motion based on its merits and has denied Mr.
Nasserizafar the opportunity to have his motion heard.
3.
The Court has not fully appreciated the fact that Mr. Nasserizafar has alleged that the
EEOC mishandled Mr. Nasserizafar’s claim of discrimination. Mr. Nasserizafar believes
“the reason why both [the Court] and the E.E.O.C. is avoiding a respond to this concern
is because [the Court] know[s] that if [the Court] concur[s] with the Plaintiff’s alleged
accusation of obstruction to justice by the Defendant’s conduct during the E.E.O.C.
investigation, then the Defendant will lose its merits on the Motion to Dismiss plea.”
4.
The Court should have found that INDOT discriminated against Mr. Nasserizafar.
5.
The Court ignored the allegations of harassment raised in Mr. Nasserizafar’s surreply
brief to the Defendant’s motion to dismiss.
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6.
The Court ignored the fact that discriminatory practices can include constructive
discharge.
7.
The Court did not properly apply the Equal Pay Act.
8.
The Court is mistaken insofar as Mr. Nasserizafar “may bring criminal charges against
INDOT if compelled to do so under 18 U.S.C. § 242 rights.”
9.
The Court did not address Mr. Nasserizafar’s Major Depressive Disorder as it affects the
statute of limitations.
10.
The Court misunderstood that Mr. Nasserizafar alleges ADA violations when he does
not.
11.
The Court did not afford Mr. Nasserizafar an opportunity for an in-person hearing during
which time he could have cleared up the existing ambiguities in his complaint.
12.
The Court did not fully appreciate the ongoing hostile environment Mr. Nasserizafar
suffered at INDOT.
13.
The Court did not address Mr. Nasserizafar’s claim for retaliation based on having
previously filed a complaint of racial discrimination.
14.
Granting leaving to amend a mere “0.1%” of the complaint is a “near total contradiction”
of the pleading requirements.
15.
The Court has failed to appreciate the unique facts of each case and instead has
“downgraded” Mr. Nasserizafar’s complaint by reference to 53 other, factually
dissimilar, cases.
Mr. Nasserizafar also seeks a response to his question: “If the Plaintiff does not have the
authority to sue INDOT for compensatory damages, then why EEOC should direct or provide
false statue for the Plaintiff to execute?”
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Assuming, as the Court must, the truth of each of these averments, the Court nevertheless
finds that recusal is not warranted. The issues raised by Mr. Nasserizafar as detailed above arise
from his disagreement with the Court’s Entry, his misunderstanding of the Entry, or a
misunderstanding of the legal process. None are a proper basis for recusal. Accordingly, Mr.
Nasserizafar’s motion is denied.
B. Title VII Claim
In the instant motion, Mr. Nasserizafar explains that his car was subjected to vandalism
during the Desert Storm Crisis “as a result on the ongoing hostility through out the nation.” The
Court does not doubt that Mr. Nasserizafar suffered unfounded hostility during this time.
However, there is no indication that anyone at INDOT was involved in this incident of
vandalism. This fact is therefore insufficient to support Mr. Nasserizafar’s Title VII claim.
IV.
CONCLUSION
For the foregoing reasons, the Plaintiff’s motion to vacate and recuse is DENIED. The
Plaintiff having failed to come forward with additional facts to support his Title VII claim, final
judgment shall now issue.
SO ORDERED:
03/28/2013
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
Copies to all counsel of record via electronic communication.
Copy by United State mail to
Mr. Bahram Nasserizafar
565 Meadow Court
Zionsville, IN 46077
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