United States District Court, D. Hawaii
U.S. Equal Employment Opportunity Commission
MJC, Inc. et al.,
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
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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 ...