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

United States District Court, D. Hawaii

January 5, 2018

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

         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:

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 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. § 2000e-5(f)(1) does not speak in clearly jurisdictional terms, and that there is no historic line of Supreme Court precedents holding 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 ...


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