United States District Court, D. Hawaii
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
MJC, INC.; GAC AUTO GROUP, INC. DBA CUTTER MAZDA OF HONOLULU; AND DOES 1-10 INCLUSIVE. Defendants.
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
Oki Mollway, United States District Judge.
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.
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
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.
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.
[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).
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).
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 two-way radios, often
while driving, Defendants understood that Mr. Vicari would
not have been able to fulfill the essential functions of the
Id. at PageID #s 76-77. This particular factual
dispute is not currently before the court.
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. §
2000e-5(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. 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.
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.
court first assures itself of jurisdiction over this matter,
then addresses the stay and the Rule 12(b)(6) matter.
THE COURT HAS JURISDICTION.
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. See Fed. R. Civ.
P. 12(b)(1). 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. ECF 23. 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) (explaining that if a court lacks
subject matter jurisdiction, it must dismiss the complaint,
sua sponte if necessary).
VII, and by extension the ADA,  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 [requirement] . . . deprives a court of
adjudicatory authority over the case, necessitating
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.” 42
U.S.C. § 2000e-5(f)(1) (emphasis added). 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).
Ninth Circuit in Geo Group did not discuss its
earlier ruling in EEOC v. Pierce Packing Co., 669
F.2d 605, 608-09 (9th Cir. 1982), which held that
“conciliation [is a] jurisdictional condition
precedent to suit by the EEOC, ” and 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.
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. Under the rule announced in 2006 in Arbaugh v.
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
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.”
See Arbaugh, 546 U.S. at 503, 514. 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 with “fifteen or more employees, ” did
not speak in clearly jurisdictional terms. See 546
U.S. at 504 (quoting 42 U.S.C. § 2000e(b) (2006)). 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).
“clear jurisdictional language” appears elsewhere
in Title VII, establishing that Congress knew how to speak in
jurisdictional terms if it so desired. See Gonzales v.
Thaler, 565 U.S. 134, 142-43 (2012). 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). See Arbaugh, 546 U.S. at 515
(discussing 42 U.S.C. § 2000e(b)). Similarly, the
conciliation provision is in a separate area of Title VII.
See 42 U.S.C. § 2000e-5(f)(1), (f)(3); Civil
Rights Act of 1964, Pub. L. 88-352 § 706 (e)-(f), 78
Stat. 260-61 (1964). Congressional use of express
jurisdictional language elsewhere in Title VII cautions
against reading the conciliation provision as containing an
additional, subtler jurisdictional limitation.
“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
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-AWI- 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.”).
that it has jurisdiction, the court now addresses whether a
stay is appropriate in this case.
THE COURT DECLINES TO STAY THE PROCEEDINGS.
Standard Governing Defendants' Stay Request.
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
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 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 ...