Anoruo v. Shinseki

Filing 21

ORDER Granting 15 Motion to Stay Discovery. Signed by Magistrate Judge Carl W. Hoffman on 8/6/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH CHIDI ANORUO,

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Plaintiff,
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vs.
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ERIC K. SHINSEKI, Secretary of
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Veteran Affairs,
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Defendant.
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____________________________________)

Case No. 2:11-cv-02070-MMD-CWH
ORDER

This matter is before the Court on Defendant’s Motion to Stay Discovery (#15), filed May
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As a general matter, courts have broad discretionary power to control discovery. See e.g.,

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Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In Tradebay, LLC v. eBay, Inc., 278

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F.R.D. 597 (D. Nev. 2011), the court undertook a detailed and thorough review of the state of the

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law as pertains to staying discovery when a dispositive motion is pending. The court determined

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that, in light of the directive in Rule 1 to construe the Federal Rules of Civil Procedure in a manner

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to “secure the just, speedy, and inexpensive determination of every action,” the preferred approach

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remains as was previously set forth in Twin City Fire Insurance v. Employers of Wausau, 124

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F.R.D. 652 (D. Nev. 1989) and Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D.

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554 (D. Nev. 1997). Generally, a pending dispositive motion is not “a situation that in and of itself

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would warrant a stay of discovery” unless jurisdiction, venue, or immunity are preliminary issues.

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See Turner Broadcasting, 175 F.R.D. at 554, 555-6 (quoting Twin City, 124 F.R.D. at 652).

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The party seeking a stay of discovery “carries the heavy burden of making a strong showing

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why discovery should be denied.” Tradebay, 278 F.R.D. at 601 (citing Turner Broadcasting, 175

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F.R.D. at 556. An overly lenient standard for granting requests to stay would result in unnecessary
delay in many cases. Evaluation of a request for a stay often requires a magistrate to take a

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“preliminary peek” at a pending dispositive motion. This “preliminary peek” is not intended to

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prejudge the outcome, but to evaluate the propriety of a stay of discovery “with the goal of

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accomplishing the objectives of Rule 1.” Id. (citation omitted). That discovery may involve

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inconvenience and expense is not sufficient, standing alone, to support a stay of discovery. Turner

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Broadcasting, 175 F.R.D. at 556. As noted in Tradebay, “[t]he explosion of Rule 12(b)(6) motions

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in the wake of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.

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662 (2009), has made the speedy determinations of cases increasingly more difficult.” Thus, “[t]he

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fact that a non-frivolous motion is pending is simply not enough to warrant a blanket stay of all

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discovery.” Tradebay, 278 F.R.D. at 603.

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The Court has conducted a preliminary review of the pending motion to dismiss (#9) and

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finds that a limited stay of discovery is appropriate. At the outset, it is noted that Plaintiff did not

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file a response to this motion. The failure of an opposing party to file a response can be grounds to

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grant the requested relief. See Local Rule (“LR”) 7-2(d) (“The failure of an opposing party to file

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points and authorities in response to any motion shall constitute a consent to the granting of the

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motion.”). Although Plaintiff’s complaint is not a model of clarity, it appears that he is a former

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federal employee attempting to pursue Title VII claims for discrimination.1 The alleged

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discrimination appears to stem from (1) the denial of Plaintiff’s application for the Education

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Department Reduction Program; (2) the non-selection for a pharmacy supervisory position at Mike

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O’Callaghan Federal Hospital; and (3) closure of a pharmacy infectious disease clinic.

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Defendant asserts that a stay is warranted in this matter because each of the asserted Title

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VII claims is time-barred based on Plaintiff’s failure to exhaust his administrative remedies. “To

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establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her

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administrative remedies before seeking adjudication of a Title VII claim.” Lyons v. England, 307

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F.3d 1092, 1103 (9th Cir. 2002). In order to exhaust administrative remedies, federal employees,

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such as Plaintiff, must first consult with an Equal Employment Opportunity (“EEO”) counselor

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In 1972, Congress amended Title VII of the Civil Rights Act of 1964 to extend its coverage to federal
employees. See 42 U.S.C. § 2000e-16 (personnel actions affecting federal employees or applicants must “be
made free from any discrimination based on race, color, religion, sex, or national origin.”).

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within 45 days of the alleged discriminatory matter. If the matter is not resolved, a plaintiff must

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file a formal administrative complaint with the agency that allegedly discriminated against him

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withing 15 days of receiving notice from the EEO counselor. See 29 C.F.R. § 1614.105(a), (d); 29

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C.F.R. § 1614.106(a), (b). Failure to comply with this regulation is “fatal to a federal employee’s

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discrimination claim.” Lyons, 307 F.3d at 1105 (citation omitted).

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The alleged events underlying Plaintiff’s claim in this case occurred on May 24, 2004

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(denial of Plaintiff’s application for the Education Department Reduction Program (“EDRP”));

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September 19, 2007 (closure of a pharmacy infectious disease clinic); and May 18, 2009 (non-

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selection for a pharmacy supervisory position at Mike O’Callaghan Federal Hospital). In his

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opposition to the motion to dismiss, Plaintiff does not dispute that he first contacted an EEO

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counselor on July 30, 2010. Instead, Plaintiff argues that his contact with the EEO counselor was

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timely because it was made within 45 days after the Department of Veteran Affairs “shut down all

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possible good faith resolution” options. See Pl.’s Resp. (#11) at 3:5-9. According to Plaintiff, the

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45 day window to consult an EEO counsel should be measured from the date the Department cutoff

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communications because it was only after this event that he became aware of the alleged

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discrimination.

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Plaintiff characterizes his argument as one for equitable tolling. It is his burden to show he

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is entitled to equitable tolling. Scholar v. Pacific Bell, 963 F.2d 264-266-67 (9th Cir. 1993). Citing

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Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa. 1988), Plaintiff first claims that he

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is entitled to equitable tolling because he was actively misled by the Department of Veteran Affairs,

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to his detriment. It is true that the Ninth Circuit recognizes equitable tolling when (1) the

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defendant’s wrongful conduct or (2) extraordinary circumstances make it impossible for the

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plaintiff to timely assert a claim. Torres v. County of Lyon, 2009 WL 905046 (D. Nev. 2009)

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(citation omitted). “Wrongful conduct” consists of a defendant’s fraudulent concealment of

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relevant facts without any fault or lack of due diligence by the plaintiff. See Santa Maria v. Pacific

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Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) (citing Holmberg v. Armbrecht, 327 U.S. 392, 397

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(1946)). “Extraordinary circumstances” are those in which external forces beyond a plaintiff’s

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control prevent a plaintiff from bringing his claim. Torres, 2009 WL 905046 at *5 (citing
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Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947)).
Even assuming the application of these doctrines, neither the complaint nor the

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documentation filed therewith support Plaintiff’s claim for equitable tolling. See Colgan v. Mabus,

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2012 WL 2061686 (S.D. Cal. 2012) (plaintiff not entitled to equitable tolling when she failed to

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allege facts in the complaint sufficient to support grounds upon which equitable tolling relied).

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Plaintiff’s failure to allege any facts in support of his claim to equitable tolling is fatal. Moreover,

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the allegations and documents appear to undermine his argument.

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Plaintiff admits that he was aware of the denial of his EDRP application as early as

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September 1, 2004, and was officially informed of the denial on May 24, 2004. See Pl.’s Amend.

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Compl. (#4) at 12. Plaintiff indicates, and the exhibits attached to his complaint verify, that he has

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contacted various officials from the Department continuously for approximately 7-8 years prior to

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bringing this lawsuit. However, he never contacted an EEO counselor, despite the Department’s

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continued position that his application was untimely. There is nothing suggesting wrongful

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conduct in the form of fraudulent concealment or circumstances beyond Plaintiff’s control that

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would have prevented timely contact with an EEO counselor. The same is also true of Plaintiff’s

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claim for discrimination based on the September 19, 2007, closure of the pharmacy infectious

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disease clinic and May 18, 2009, non-selection for a supervisory position. Obviously, Plaintiff was

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aware of both of these actions on the days they occurred. Neither decision was concealed from

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Plaintiff and there are no circumstances asserted that support the claim that Plaintiff could not have

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timely contacted an EEO counselor.

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Citing King v. State of Cal., 784 F.2d 910 (9th Cir. 1986), Plaintiff also argues that the 45-

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day window to contact an EEO counselor should be tolled because he timely contacted an EEO

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counsel once he was aware of the discriminatory nature of the conduct. A Title VII claim accrues

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upon awareness of the actual injury and not when a plaintiff suspects a legal wrong. Lukowvsky v.

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City and County of San Francisco, 535 F2d 1044, 1049 (9th Cir. 2008). The complaint in this

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matter clearly identifies the dates on which the allegedly discriminatory acts actually occurred. It

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does not appear Plaintiff contacted an EEO counselor in a timely fashion after any of the alleged

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discriminatory acts.
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It also appears Plaintiff is arguing that the alleged discriminatory acts were part of a

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“continuing violation” on which he based an EEO charge in 2010. It does not appear that Plaintiff

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is making a hostile work environment claim. Each of the alleged discriminatory acts appear to be a

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discrete event. The Supreme Court addressed the issue of the continuing violation theory in

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National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

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The Court held that “discrete discriminatory acts are not actionable if time barred, even when they

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are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new

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clock ticking for filing charges alleging that act.” 536 U.S. at 113-14. Given that Plaintiff first saw

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an EEO counselor on July 30, 2010, it appears likely that most, if not all, of the allegedly

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discriminatory acts set forth in Plaintiff’s complaint are time barred.
Based on the foregoing, and consistent with the directive in Rule 1 to construe the Federal

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Rules of Civil Procedure in a manner to “secure the just, speedy, and inexpensive determination of

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every action,” the undersigned concludes that Defendant has met its heavy burden and a stay of

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discovery is warranted. It does appear likely that most, if not all, of Plaintiff’s Title VII claims are

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time-barred for failure to exhaust his administrative remedies. “To establish federal subject matter

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jurisdiction, a plaintiff is required to exhaust his or her administrative remedies before seeking

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adjudication of a Title VII claim.” Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). Rather

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than force the parties to engage in discovery, the Court will stay discovery pending resolution of

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Defendant’s motion to dismiss (#9). Accordingly,

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IT IS HEREBY ORDERED that Defendant’s Motion to Stay Discovery (#15) is granted.

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DATED this 6th day of August, 2012.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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