1 Mary Jo O’Neill AZ Bar #005924
C. Emanuel Smith MS Bar #7473
2 Lucila G. Rosas CA Bar #187345
Karen Nutter CA Bar #235056
3 Equal Employment Opportunity Commission
Phoenix District Office
4 3300 North Central Avenue, Suite 690
Phoenix, Arizona 85012-2504
5 Telephone: (602) 640-5025
Facsimile: (602) 640-5009

6 Attorneys for Plaintiff

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE DISTRICT OF ARIZONA

10 Equal Employment Opportunity
11 Commission,

12

Plaintiff,

13

vs.

14 Bashas’ Inc.,

15

Defendant,

16 Navajo Nation,

17

Rule 19 Defendant.

18

)

) CIV No.

)

)

)

COMPLAINT

)

)

(Jury Trial Demanded)

)

)

)

)

)

)

)

)

)

19

NATURE OF THE ACTION

20

This is an action pursuant to Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII") and Section 102 of the 21

Civil Rights Act of 1991, 42 U.S.C. § 1981(a) against Bashas’ Inc., (“Bashas’”) 22
seeking redress for unlawful discrimination against a class of similarly situated 23
non-Navajo Native Americans. Plaintiff, the U.S. Equal Employment Opportunity 24
Commission (the “Commission” or “EEOC”) alleges that Bashas’ has
25 discriminated against and continues to discriminate against non-Navajo Native

26 Americans on the basis of their national origin by failing to hire qualified non-

27 Navajo Native Americans. The Commission further alleges that Bashas’ has

28

1 failed to retain employment applications as required by 42 U.S.C. § 2000 e-8(c).

2

JURISDICTION AND VENUE

3

1. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §§ 451,

4 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to

5 42 U.S.C. § 2000e-5(f)(1) and (3) and 42 U.S.C. § 1981(a).

6

2. Bashas’ unlawful employment practices were committed in Tuba

7 City, Arizona and, accordingly, venue is proper in this Court.

8

3. The unlawful employment practices occurred on the property of the

9 Navajo Nation located in Tuba City, Arizona and, accordingly, venue is proper in

this Court. 10
PARTIES 11
4. The Commission is the agency of the United States of America 12
charged with the administration, interpretation and enforcement of Title VII and is 13
expressly authorized to bring this action by 42 U.S.C. § 2000e-5(f)(1) and (3). 14
5. More than thirty days prior to the institution of this lawsuit, Dale

15 Lucero and Randy Honahni (collectively referred to as the “Charging Parties”)

16 filed charges of discrimination with the Commission, alleging that Bashas’ had

17 violated Title VII by refusing to hire them because they were Native Americans

18 who were not members of the Navajo Nation. All conditions precedent to the

19 institution of this lawsuit have been fulfilled.

20

6. Bashas’ operates supermarkets on land which is located in Arizona

21 and has, at all relevant times, employed approximately ten thousand five hundred

22 (10,500) employees.

23

7. At all relevant times, Bashas’ has continuously been an employer

24 engaged in an industry affecting commerce within the meaning of Section 701(b),

25 (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b), (g) and (h).

26

8. Defendant Navajo Nation is a party to a lease agreement with the

27 Defendant Employer Bashas’ and is therefore named as a party pursuant to Rule

28 19(a) of the Federal Rules of Civil Procedure in that, in its absence, complete

2

1 relief cannot be accorded among those already parties, and it has an interest in

2 the subject of this action.

3

NOTICE

4

9. Notice of this action was given to Mr. Joe Shirley, Jr., President of

5 the Navajo Nation and Mr. Lewis Denetsosie, Attorney General for the Navajo

6 Nation, on July 8, 2005 via certified mail/return receipt. The Commission

7 received the return receipt showing delivery of the documents to each of them on

8 July 12, 2005.

9

CONCILIATION

10. Prior to the institution of this lawsuit, the Commission’s 10
representatives attempted to eliminate the unlawful employment practices alleged 11
below and to effect voluntary compliance with Title VII through informal methods 12
of conciliation, conference and persuasion within the meaning of Section 706(b) 13
of Title VII, 42 U.S.C. § 2000e-5(b). 14
STATEMENT OF CLAIMS

15

11. Charging parties are Native Americans who are not members of the

16 Navajo Nation. Charging parties are members of the Hopi Tribe.

17

12. Bashas’ operates a supermarket which is located on land owned by

18 the Navajo Nation.

19

13. Charging parties and a class of similarly situated qualified non-

20 Navajo Native Americans applied for open positions with Bashas’ for which they

21 were qualified. Bashas’ did not hire Charging Parties and the class of similarly

22 situated qualified non-Navajo Native Americans, but instead hired members of

23 the Navajo Nation for the open positions.

24

14. Bashas’ has a history of refusing to hire non-Navajo Native

25 Americans for open positions at its facility. The effect of this reputation is that

26 qualified non-Navajo Native Americans have been discouraged from applying for

27 open positions at Bashas’ and have accordingly failed to apply for open positions

28 with Bashas’.

3

1

15. The effect of Bashas’ practices outlined above has been to deprive

2 non-Navajo Native Americans of equal employment opportunities because of

3 their national origin.

4

FIRST CLAIM FOR RELIEF

5

(Discrimination in violation of Title VII based on national origin)

6

16. The Commission incorporates by this reference paragraphs one

7 through fourteen outlined above.

8

17. Bashas’ has engaged in, and continues to engage in, unlawful

9 employment practices by discriminating against Charging Parties and a class of

similarly situated qualified, non-Navajo Native Americans on the basis of their 10
national origin, in violation of Section 703 (a) of Title VII, 42 U.S.C. § 2000e-2(a) 11
by refusing to hire qualified non-Navajo Native American individuals. 12
18. The unlawful employment practices complained of above were 13
intentional. 14
19. The unlawful employment practices complained of above were done

15 with malice or with reckless indifference to the federally protected rights of

16 Charging Parties and a class of similarly situated qualified non-Navajo Native

17 Americans.

18

SECOND CLAIM OF RELIEF

19

(Record-keeping violation)

20

20. Since at least September, 1999, Defendant Bashas’ has failed, in

21 violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to make and

22 preserve records relevant to the determination of whether unlawful employment

23 practices have been or are being committed.

24

PRAYER FOR RELIEF

25

Wherefore, the Commission respectfully requests that this Court:

26

A. Grant a permanent injunction enjoining Bashas’, its officers,

27 successors, assigns, and all persons in active concert or participation with it, from

28 engaging in discrimination on the basis of national origin.

4

1

B. Order Bashas’ to institute and carry out policies, practices, and

2 programs which provide equal employment opportunities for non-Navajo Native

3 Americans and which eradicate the effects of its past and present unlawful

4 employment practices.

5

C. Order Bashas’ to make whole Charging Parties and a class of

6 similarly situated non-Navajo Native Americans by providing appropriate back

7 pay with prejudgment interest, in amounts to be determined at trial, and other

8 affirmative relief necessary to eradicate the effects of its unlawful employment

9 practices.
D. Order Bashas’ to make and preserve all records, in accordance with 10
the provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 11
U.S.C. § 2000e-8(c), relevant to the determination of whether unlawful 12
employment practices have been or are being committed. 13
E. Order Bashas’ to make whole Charging Parties and a class of 14
similarly situated non-Navajo Native Americans by providing compensation for 15 past and future pecuniary losses resulting from the unlawful employment

16 practices described above in amounts to be determined at trial.

17

F. Order Bashas’ to make whole Charging Parties and a class of

18 similarly situated non-Navajo Native Americans by providing compensation for

19 past and future nonpecuniary losses resulting from the unlawful practices

20 complained of above in amounts to be determined at trial.

21

G. Order Bashas’ to pay punitive damages for its malicious and reckless

22 disregard to the federally protected rights of the Charging Parties and a class of

23 similarly situated individuals described above, in amounts to be determined at

24 trial.

25

H. Grant such further relief as the Court deems necessary and proper in

26 the public interest.

27

I. Award the Commission its costs of this action.

28

5

1

JURY DEMAND

2

The Commission respectfully requests a trial by jury on all appropriate

3 Claims for Relief set forth in this Complaint.

4

DATED this 17th day of August, 2005.

5

Respectfully submitted,

6

ERIC S. DREIBAND

7

General Counsel

8

JAMES L. LEE Deputy General Counsel

9

GWENDOLYN YOUNG REAMS

Associate General Counsel

10

EQUAL EMPLOYMENT

11

OPPORTUNITY COMMISSION

1801 L Street, N.W.

12

Washington, D.C. 20507

13

14

s/ Mary Jo O’Neill

MARY JO O’NEILL

15

Regional Attorney

16

s/ C. Emanuel Smith

17

C. EMANUEL SMITH

18

Supervisory Trial Attorney

19

s/ Lucila G. Rosas

20

LUCILA G. ROSAS

Trial Attorney

21

22

s/ Karen Nutter

23

KAREN NUTTER Trial Attorney

24

EQUAL EMPLOYMENT

25

OPPORTUNITY COMMISSION Phoenix District Office

26

3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012

27

(602) 640-5025

28

Attorneys for Plaintiff

6

 
 1 WO

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9

10 Equal Employment Opportunity)

Commission,

)

11

)

Plaintiff,

)

12

)

vs.

)

13

)

Bashas’ Inc.,

)

14

)

Defendant, and

)

15

)

Navajo Nation,

)

16

)

Rule 19 Defendant.

)

17

)

)

18

No. CV 05-2382-PHX-SMM
MEMORANDUM OF DECISION AND ORDER

19

Pending before the Court is the Navajo Nation’s Motion to Stay Proceedings Pending

20 Resolution of Equal Employment Opportunity Commission v. Peabody Western Coal Co.,

21 CV-01-1050-PHX-MHM (the “Peabody Lawsuit”), on the grounds that it raises “analogous

22 and in many instances identical legal issues to those pending in this lawsuit.” (Dkt. 33 at 2.)

23 The Equal Employment Opportunity Commission (the “EEOC”) has filed a response in

24 opposition to the Navajo Nation’s request to stay the case, to which the Navajo Nation has

25 replied. (Dkts. 34-35.) Recently, both parties filed supplemental authority, bringing to the

26 Court’s attention that the Peabody Lawsuit was recently dismissed by a judge of this Court

27 and is now pending on appeal. (Dkts. 36-37.) After considering the arguments raised in the

28 parties’ briefs, the Court issues the following Order.

1

BACKGROUND

2 A. The Peabody Lawsuit1

3

Pursuant to two leases entered into by its predecessor in interest, Peabody mines coal

4 on the Navajo Nation’s reservation and on the Navajo portion of land set aside for joint use

5 by the Navajo and Hopi Nations. EEOC v. Peabody Western Coal Co., 400 F.3d 774, 776

6 (9th Cir. 2005) (Peabody I). Both leases require that preference in employment be given to

7 members of the Navajo Nation, although one lease provides that Peabody may “at its option

8 extend the benefits of [the Navajo employment preference] to Hopi Indians.” Id. Pursuant

9 to the Indian Mineral Leasing Act of 1938 (“IMLA”), the Department of Interior (the “DOI”)

10 has approved both leases, as well as subsequent amendments and extensions. Id. If the lease

11 terms are violated, the Navajo Nation and the DOI retain the power to cancel the leases after

12 a notice and cure period. Id. at 777.

13

On June 13, 2001, the EEOC filed a Title VII action against Peabody claiming it

14 engaged in prohibited national origin discrimination by implementing the Navajo

15 employment preference contained in the mineral leases. (Dkt. 1.) Specifically, the EEOC

16 alleged that Peabody had refused to hire non-Navajo Native Americans for positions for

17 which they were otherwise qualified, in violation of Title VII, 42 U.S.C. §2000e-2(a)(1). (Id.

18 at ¶¶1-17.) In addition, the EEOC alleged that Peabody had violated the record-keeping

19 requirements of 42 U.S.C. §2000e-8(c). (Id. at ¶18.)

20

On March 29, 2002, Peabody moved for summary judgment and for dismissal of the

21 action under Federal Rules of Civil Procedure 12(b)(7) and 12(b)(1). (Dkt. 38.) Peabody

22 neither admitted nor denied that it had discriminated against non-Navajo Native Americans

23 in violation of Title VII. (Id.) Instead, relying on Federal Rule of Civil Procedure 19,

24 Peabody argued that the case should be dismissed because the Navajo Nation was a

25 necessary and indispensable party that could not be joined because of the EEOC’s inability

26

27

1All citations in this section are to the docket in the Peabody Lawsuit.

28

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1 to bring an action against the Navajo Nation. (Dkt. 38.) In the alternative, Peabody argued

2 that the issue of the legality of the employment preference provision in the leases was a

3 nonjusticiable political question because the DOI had approved the mining leases. (Id.)

4

On September 26, 2002, the Honorable Mary H. Murguia agreed with Peabody and

5 dismissed the entire action. (Dkts. 59-60.) Judge Murguia held that the Navajo Nation was

6 a necessary and indispensable party that the EEOC could not join as a party to the case.

7 (Dkt. 59 at 12-18.) In the alternative, Judge Murguia found the legality of the Navajo

8 employment preference in the leases to be a nonjusticiable political question. (Id. at 18-23.)

9 On November 21, 2002, the EEOC appealed Judge Murguia’s decision. (Dkt. 61.)

10

On June 3, 2005, the Ninth Circuit Court of Appeals reversed and remanded Judge

11 Murguia’s decision. Peabody, 400 F.3d at 778-85. The Court of Appeals found the Navajo

12 Nation is a necessary and indispensable party that can be joined under Rule 19 of the Federal

13 Rules of Civil Procedure. The Ninth Circuit held,

14

where the EEOC asserts a cause of action against Peabody and seeks no

15

affirmative relief against the [Navajo] Nation, joinder of the [Navajo] Nation

16

under Rule 19 is not prevented by the fact that the EEOC cannot state a cause

17

of action against it. Because the EEOC is an agency of the United States, the

18

[Navajo] Nation cannot object to joinder based on sovereign immunity . . . .

19

We therefore hold that joinder of the Nation is feasible.

20 Id. at 778 (emphasis added). The Ninth Circuit emphasized, however, that “[j]oinder of the

21 Nation does not, and cannot, create any substantive rights that the EEOC may enforce against

22 the Nation.” Id.2

23

On June 17, 2005, the EEOC filed an Amended Complaint naming Peabody as a

24 defendant and joining the Navajo Nation as a Rule 19 defendant. (Dkt. 67.) The Amended

25

26 2 Although not pertinent to the instant Motion to Stay, the Ninth Circuit also held the
27 EEOC’s claim is not precluded as a nonjusticiable political question. Id. at 785.

28

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1 Complaint seeks monetary relief against Peabody and a “permanent injunction enjoining

2 Peabody . . . and all persons in active concert or participation with it, from engaging in

3 discrimination on the basis of national origin.” (Id. at ¶A.)

4

On February 17, 2006, the Navajo Nation filed a Motion to Dismiss for Lack of

5 Subject Matter Jurisdiction, Lack of Personal Jurisdiction, Insufficiency of Process, Failure

6 to State a Claim, Lack of Capacity, Failure to Exhaust Tribal Remedies, and Failure to Join

7 the United States as an Indispensable Party. (Dkt. 89.) On May 18, 2006, Judge Murguia

8 granted the EEOC’s request to conduct discovery regarding specific matters raised in the

9 Navajo Nation’s Motion to Dismiss, including the Secretary of the Interior’s involvement in

10 the drafting and formulations of the mineral leases. (Dkt. 108.) On September 30, 2006,

11 Judge Murguia converted the Navajo Nation’s Motion to Dismiss to a Motion for Summary

12 Judgment and dismissed the case on four alternative bases, two of which directly impact the

13 instant Motion to Stay. (Dkt. 142.)

14

First, Judge Murguia determined that the Navajo Nation is a necessary and

15 indispensable party that cannot feasibly be joined because the EEOC’s Amended Complaint

16 seeks affirmative relief directly from the Navajo Nation. (Id. at 9-12.) Emphasizing that the

17 Ninth Circuit “restricted its holding regarding the feasibility of joinder of the Navajo Nation

18 to instances where no affirmative relief is sought against it,” Judge Murguia determined that

19 “the Amended Complaint filed after the Ninth Circuit’s ruling belies the notion that the

20 EEOC is not seeking any affirmative relief against the Navajo Nation.” (Id. at 10.) In

21 particular, the Court focused on the Amended Complaint’s request for “a permanent

22 injunction enjoining Peabody . . . and all person in active concert or participation with it,

23 from engaging in discrimination on the basis of national origin,” which clearly includes the

24 Navajo Nation. (Id.) The affirmative relief sought by the EEOC, the Court noted, is contrary

25 to Title VII’s express exemption of Indian tribes from Title VII suits. See id. at 781; see also

26 42 U.S.C. §2000e(b) ( “an Indian tribe is specifically exempt from the definition of

27 employer, and thus Title VII does not apply to Indian tribes when they act as employers.”).

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1

Second, in addition to running “afoul of proper procedural requirements [under Title

2 VII] when asserting a suit against a government respondent,” Judge Murguia determined that

3 the EEOC’s request for affirmative relief against the Navajo Nation is contrary to the Rules

4 Enabling Act. Id. at 12-13. She also found the request for affirmative relief to be

5 inconsistent with the Ninth Circuit’s holding in Peabody I that “‘[j]oinder of the Nation does

6 not, and cannot, create any substantive rights that the EEOC may enforce against the

7 Nation,’” because such affirmative relief “is inconsistent with the EEOC’s substantive rights

8 against the Navajo Nation.” Id. at 13, quoting Peabody I, 400 F.3d at 783.

9

On November 27, 2006, the EEOC filed a Notice of Appeal. (Dkt. 145.)

10 B. The Instant Case: EEOC v. Bashas’ Inc. and Navajo Nation, Rule 19 Defendant3

11

On August 17, 2005, two months after the EEOC filed its Amended Complaint in the

12 Peabody Lawsuit, the EEOC filed a substantively identical Complaint against Bashas’ Inc.,

13 joining the Navajo Nation as a Rule 19 defendant. Like the Amended Complaint in the

14 Peabody Lawsuit, the Complaint at issue here alleges that Bashas’ engaged in prohibited

15 national origin discrimination by implementing Navajo employment preference provisions

16 contained in leases allowing Bashas’ to operate a supermarket on land owned by the Navajo

17 Nation. (Dkt. 1.) The EEOC alleges that Bashas’ has refused to hire non-Navajo Native

18 Americans for positions for which they were otherwise qualified, in violation of Title VII,

19 42 U.S.C. §2000e-2(a)(1). (Id. at ¶¶1-19.) In addition, the EEOC alleges that Bashas’ has

20 violated the record-keeping requirements of 42 U.S.C. §2000e-8(c). (Id. at ¶20.)

21 Significantly, like the Amended Complaint in the Peabody Lawsuit, the EEOC seeks

22 monetary relief against Bashas’ and a “permanent injunction enjoining Bashas’ . . . and all

23 persons in active concert or participation with it, from engaging in discrimination on the basis

24 of national origin.” (Id. at ¶A.)

25

26

27

3 The citations in this section of the Order are to the docket in the instant case.

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1

As in the Peabody Lawsuit, the Navajo Nation has filed a Motion to Dismiss for Lack

2 of Subject Matter Jurisdiction, Lack of Personal Jurisdiction, Insufficiency of Process,

3 Failure to State a Claim, Lack of Capacity, Failure to Exhaust Tribal Remedies, and Failure

4 to Join the United States as an Indispensable Party. (Dkt. 24.) In response, the EEOC filed

5 a Motion to Continue in Order to Engage in Discovery. (Dkt. 25.) The Navajo Nation then

6 filed the instant Motion to Stay Proceedings. (Dkt. 33.)

7

DISCUSSION

8

The Navajo Nation argues that the instant case should be stayed pending a final

9 decision on the propriety of Judge Murguia’s decision in the Peabody Lawsuit because “no

10 showing of possible damage has been made by any party” and “disposition of the Peabody

11 Lawsuit is extremely likely to contribute to a decision of the legal issues (and any factual

12 issues relating to jurisdiction) pending before this Court” and “should, at a minimum,

13 significantly narrow the issues to be addressed.” (Dkts. 33 at 2-3; 35 at 2.) The EEOC

14 contends the Motion to Stay should be denied because the Navajo Nation seeks “an indefinite

15 stay” “that undoubtedly will be years-long.” (Dkt. 34 at 1-2.) For a number of reasons,

16 including that the Peabody Lawsuit is currently pending on appeal, the Court finds that the

17 instant case should be stayed.

18

The United States Supreme Court recognized long ago that “the power to stay

19 proceedings is incidental to the power inherent in every court to control the disposition of the

20 causes on its docket with economy of time and effort for itself, for counsel, and for litigants.

21 How this can best be done calls for the exercise of judgment, which must weigh competing

22 interests and maintain an even balance.” See Landis v. North American Co., 299 U.S. 248,

23 254-55 (1936 ). As an offshoot of its inherent power to control the docket, this Court has

24 broad discretion to grant or deny stays in order to “‘coordinate the business of the court

25 efficiently and sensibly.’” Landis, 299 U.S. at 255; see also CMAX, Inc. v. Hall, 300 F.2d

26 265, 268 (9th Cir. 1962) (“A district court has inherent power to control the disposition of

27 the causes on its docket in a manner which will promote economy of time and effort for

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1 itself, for counsel, and for litigants. The exertion of this power calls for the exercise of a

2 sound discretion.”). The party seeking a stay “must make out a clear case of hardship or

3 inequity in being required to go forward” with litigation only where “there is . . . a fair

4 possibility that the stay . . . will work damage to some one else.” See Landis, 299 U.S. at

5 255. The moving party must also evaluate the public interest, including the judiciary’s

6 interest in efficiency, economy, and fairness. See CMAX, Inc., 300 F.2d at 268-69.

7

For two reasons, the Court concludes that a stay of this action is appropriate until the

8 Court of Appeals rules on Judge Murguia’s decision dismissing the Peabody Lawsuit.

9

First, the general rules governing stays of pending litigation militate in favor of

10 staying this proceeding because no showing of possible damage resulting from a stay has

11 been demonstrated by either non-moving party. See Landis, 299 U.S. at 255 (absent a

12 showing that there is at least “a fair possibility that the stay . . . will work damage to some

13 one else,” there is no requirement that the party requesting a stay demonstrate a “clear case

14 of hardship or inequity” to warrant the granting of the requested stay). Bashas’ does not

15 oppose the Navajo Nation’s Motion to Stay, and the EEOC’s claims of potential damage are

16 vague and generalized, at best. See dkt. 34 at 8. The EEOC’s assertion that a stay will

17 damage “the class of non-Navajos who have applied or will apply for work with Bashas’”

18 (id.) is conclusory and unsubstantiated. Because the EEOC fails to specify the number of

19 non-Navajos who will be impacted by a stay, its assertion is far too abstract to consider.

20 Moreover, the instant case is not a class action. Therefore, the EEOC’s reference to a “class

21 of non-Navajos” is inaccurate.

22

Similarly, the EEOC’s assertion that a stay will make it “more difficult to locate

23 witnesses and potential class members” (id.) does not demonstrate damage because that

24 effect is attendant to litigation generally. At most, a stay would (to some extent) prolong the

25 litigation. However, as the Navajo Nation points out, “[t]he Navajo preference in

26 employment provisions contained in the Bashas’ lease are contained in hundreds of other

27 federally-approved leases between the Navajo Nation and various business entities that

28

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1 choose to do business on the Navajo reservation.” (Dkt. 35 at 3.) Therefore, a stay of the

2 instant case will not jeopardize the EEOC’s ability to challenge the Navajo employment

3 preference provisions. There is thus very little substance to these claims of potential harm.

4

The EEOC also complains that a stay of the proceedings long enough for final

5 resolution of the Peabody Lawsuit will impede “[t]he Commission’s ability to fully prosecute

6 Bashas’.” (Dkt. 34at 8.) The EEOC seems to imply that such a course of action would be

7 somehow unfair, but fails to explain precisely why. If the EEOC’s point is that the effect of

8 a stay might be to narrow and sharpen the issues in this action by permitting all parties to

9 more carefully tailor their arguments in light of the outcome in the Peabody Lawsuit, that

10 point counsels entry — rather than denial — of the requested stay. See generally CMAX,

11 300 F.2d at 269 (“It may be that CMAX will be prejudiced by the delay in the sense that

12 evidence will be obtained, or rulings made, as a result of the Board proceedings, which will

13 adversely affect the claims which CMAX asserts in the district court. But this is not the kind

14 of prejudice which should move a court to deny a requested postponement.”).

15

More importantly, the EEOC cannot paint this as a case where the effect of the

16 requested stay would be to “compel[ ][it] to stand aside while a litigant in another [case]

17 settles the rule of law that will define the rights of both,” because the EEOC is a party to both

18 the Peabody Lawsuit and this case. See Landis, 299 U.S. at 255; CMAX, 300 F.2d at 269

19 n. 8 (flatly rejecting a plaintiff’s attempt to invoke the above-quoted statement from Landis

20 in opposition to a request for a stay of litigation pending the outcome of administrative

21 proceedings, stating “[T]hat observation [from Landis ] is not applicable in the case [at bar]

22 ... because [the plaintiff] is a litigant in the [administrative] proceedings and will have its say

23 before administrative findings and conclusions are entered.”).

24

Finally, the Court rejects the EEOC’s general assertions of harm flowing from any

25 postponement of the instant litigation because the EEOC is the appellant in the Peabody

26 Lawsuit. Rather than quickly appealing Judge Murguia’s decision dismissing the Peabody

27 Lawsuit, the EEOC waited 56 days to file a notice of appeal. See CV-01-1050-PHX-MHM,

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1 dkts. 143, 145. Moreover, although the EEOC timely appealed Judge Murguia’s decision,

2 it did not move to expedite that appeal, even though it was then aware that the Navajo

3 Nation’s Motion to Stay was pending in the present case. Indeed, the EEOC filed its

4 supplemental brief on the stay issue in this case before it filed a notice of appeal in the

5 Peabody Lawsuit. If the EEOC had requested an expedited appeal, this Court would be more

6 willing to credit its vague assertions of harm. Given that the EEOC opted not to seek

7 expedited review, and waited almost the full sixty day period to file an appeal, however, its

8 vague assertions of generalized harm are not well-taken.

9

In sum, the EEOC has advanced only vague and generalized claims of potential harm

10 to support its opposition to the Navajo Nation’s requested stay and has failed to quantify or

11 substantiate those claims in any fashion. The extent of any potential harm it may suffer is

12 thus entirely unclear – if, indeed, there is any potential for harm at all. The Court therefore

13 concludes that the EEOC will not suffer any undue hardship if a stay is granted until the

14 Ninth Circuit issues its mandate in determining the propriety of Judge Murguia’s dismissal

15 of the Peabody Lawsuit.

16

The second reason a stay is appropriate here is because, in addition to demonstrating

17 specific financial harm it would suffer if a stay were not granted (see dkt. 33 at 7-8), the

18 Navajo Nation has shown that the Court of Appeals’ decision in the Peabody Lawsuit is

19 extremely likely to be dispositive of, or at least narrow, the legal issues before this Court.

20 See CMAX, 300 F.2d at 268 (in evaluating request for stay, court is to weigh the potential

21 effect on “the orderly course of justice measured in terms of the simplifying or complicating

22 of issues, proof, and questions of law which could be expected to result from a stay”).4

23

24

4 Nevertheless, a case may properly be stayed pending the outcome of the “lead” case

25 even where the “lead” case may not be potentially dispositive of the case sought to be stayed. That is, even where the “lead” case may, at most, streamline the issues in the case sought to be

26 stayed. See, e.g., Landis, 299 U.S. at 256 (noting that, even though “every question of fact and

law” in the case sought to be stayed might not be decided in the “lead” case, “in all likelihood 27 [the ‘lead’ case] will settle many and simplify them all”); Leyva v. Certified Grocers of

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1

The Navajo Nation contends the central issues in both the Peabody Lawsuit and the

2 instant case are substantially similar and thus the Ninth Circuit’s decision could have a major

3 impact on whether or not the instant case continues at all. This Court agrees that a decision

4 by the Ninth Circuit in the Peabody Lawsuit will have important precedential value. The

5 active Complaints, pending and previously pending motions, and case histories in this case

6 and the Peabody Lawsuit demonstrate that the Ninth Circuit’s decision will substantially

7 contribute to this Court’s decision of several pending legal issues, including jurisdiction,

8 failure to state a claim, and the EEOC’s request to engage in discovery. See Dkts. 24-25.

9 Indeed, given that the Amended Complaint dismissed in the Peabody Lawsuit and the

10 Complaint pending in the present case are substantively identical, disposition of the Peabody

11 Lawsuit by the Court of Appeals will, at a minimum, significantly narrow the issues to be

12 decided here. Thus, staying the instant case until the Ninth Circuit rules on Judge Murguia’s

13 decision dismissing the Peabody Lawsuit will avoid or decrease significant costs to all

14 parties, further important interests in judicial efficiency, aid in the resolution of important

15 legal issues pending before this Court, and avoid piecemeal litigation of common issues.

16

The Court is not persuaded by the EEOC’s argument that, although both cases

17 “involve the same unlawful practice – the defendants’ [alleged] discrimination against non-

18 Navajo job applicants – fundamental factual differences make the limited discovery obtained

19 by the Commission in [the Peabody Lawsuit] irrelevant to the discovery the Commission

20 anticipates it will need to adequately respond to the Motion to Dismiss.” Dkt. 37 at 2. Any

21 factual differences are irrelevant to the Navajo Nation’s request for a stay, which is

22 predicated on the existence of common legal issues – i.e., whether the Navajo Nation is a

23 necessary and indispensable party, whether the Complaint violates the Rules Enabling Act

24 and Title VII requirements, and whether the EEOC has stated a claim. See 36 at ¶3. As

25

26 California, Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979) (stay pending outcome of another case is
appropriate even where the other proceedings are not “necessarily controlling of the action” that 27 is stayed).

28

- 10 -

1 explained above, supra at 4-5, neither the first nor second bases of Judge Murguia’s decision

2 to dismiss the Peabody Lawsuit resulted from discovery conducted by the EEOC in Peabody.

3 Rather, both bases resulted from Judge Murguia’s decision that the Amended Complaint

4 improperly requested affirmative relief from the Navajo Nation in the form of injunctive

5 relief enjoining the Nation from enforcing its Navajo employment preference provisions.

6 (Dkt. 142 at 9-13, 24.) The Complaint at issue in the present case is substantively identical

7 to the Amended Complaint filed in the Peabody Lawsuit and contains the exact same request

8 for affirmative relief against the Navajo Nation. See Dkt. 1 at ¶A (requesting injunctive

9 relief enjoining the Nation from requiring and enforcing its Navajo employment preference

10 provisions). Judge Murguia determined that the EEOC’s request for affirmative relief against

11 the Navajo Nation is inconsistent with (i) the Ninth Circuit’s decision in Peabody I; (ii) the

12 Rules Enabling Act; (iii) Title VII’s exemption for Indian tribes; and (iv) the feasibility of

13 joining the Navajo Nation to the instant case. See 01-1050-PHX-MHM, Dkt. 142 at 9-13,

14 24. Thus, this Court flatly rejects the EEOC’s assertion that “in the case currently before this

15 Court, there is no matter . . . that might cause the Commission to dismiss its lawsuit or that

16 would streamline the issues.” (Dkt. 34 at 6-7.)

17

Likewise, although the EEOC is correct that “any ruling by Judge Murguia in [the

18 Peabody Lawsuit] will have no precedential effect on this Court” because “[t]he decisions

19 of one district court are not binding on another,” this Court finds Judge Murguia’s decision

20 extremely persuasive on pure legal issues identical to issues in the instant case. Moreover,

21 the fact that both this Court and Judge Murguia answer to the Ninth Circuit Court of Appeals

22 is a compelling reason to stay the instant case while the Ninth Circuit determines the

23 propriety of Judge Murguia’s ruling. Given Judge Murguia’s persuasive decision on pure

24 issues of law, the Court will not, at this time, permit the EEOC to require the Navajo Nation

25 to engage in costly discovery pertinent to factual issues presented in the Nation’s Motion to

26 Dismiss. In addition, the Court finds that considerations of judicial economy would not be

27

28

- 11 -

1 served by allowing the EEOC to conduct discovery in the present case before the Ninth

2 Circuit Court of Appeals issues its mandate in the Peabody Lawsuit.

3

CONCLUSION

4

This Court has the discretion to stay the instant case pending a decision from the Ninth

5 Circuit Court of Appeals on the propriety of Judge Murguia’s dismissal of the Peabody

6 Lawsuit. In addition to demonstrating that a stay will neither harm nor prejudice the EEOC,

7 the Navajo Nation has advanced sufficient justifiable reasons why the Court should exercise

8 its discretion to immediately stay this proceeding.

9

Because the Court concludes that the Ninth Circuit’s decision ruling on the propriety

10 of Judge Murguia’s dismissal of the Peabody Lawsuit will most likely be helpful in resolving

11 the legal issues set forth in the Navajo Nation’s Motion to Dismiss, it declines to rule on that

12 motion at this time. In addition, the Court finds that it would be unfair to require the Navajo

13 Nation to stand on the Motion to Dismiss currently filed, rather than being provided the

14 opportunity to file a new Motion to Dismiss after the Ninth Circuit issues its decision.

15 Therefore, as set forth below, the Court will deny the Navajo Nation’s Motion to Dismiss

16 without prejudice and with leave to file a revised or the same motion within 20 court days

17 after the issuance of the Ninth Circuit’s mandate in the Peabody Lawsuit. Accordingly,

18

IT IS HEREBY ORDERED GRANTING the Navajo Nation’s Motion to Stay

19 Proceedings Pending Resolution of E.E.O.C. v. Peabody Western Coal, Co., CV–01-1050-

20 PHX-MHM. (Dkt. 33.) All proceedings in the instant case are STAYED pending the

21 issuance of the Ninth Circuit’s mandate in E.E.O.C. v. Peabody Western Coal Co., Court of

22 Appeals No. 06-17261 (Dist. Ct. No. CV-01-1050-PHX-MHM).

23

IT IS FURTHER ORDERED that the Navajo Nation’s Motion to Dismiss for Lack

24 of Subject Matter Jurisdiction, Lack of Personal Jurisdiction, Insufficiency of Process,

25 Failure to State a Claim, Lack of Capacity, Failure to Exhaust Tribal Remedies, and Failure

26 to Join the United States as an Indispensable Party is DENIED WITHOUT PREJUDICE

27 TO RE-FILING the same or a revised motion within twenty (20) court days after the Ninth

28

- 12 -

1 Circuit’s mandate issues in E.E.O.C. v. Peabody Western Coal Co., Court of Appeals No. 06-

2 17261 (Dist. Ct. No. CV-01-1050-PHX-MHM). (Dkt. 24.) If the Navajo Nation elects to

3 re-file the same Motion to Dismiss, it may do so by filing a notice of re-filing with the Court

4 within the twenty day period.

5

DATED this 13th day of December, 2006.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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- 13 -

 
 Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 1 of 9
CLOSED,STAY−BK,STAY−CASE,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:05−cv−02382−SMM

Equal Employment Opportunity Commission v. Bashas' Inc et al Date Filed: 08/17/2005

Assigned to: Senior Judge Stephen M McNamee

Date Terminated: 11/12/2014

Cause: 42:2000e Job Discrimination (Employment)

Jury Demand: Plaintiff

Nature of Suit: 442 Civil Rights: Jobs

Jurisdiction: U.S. Government Plaintiff

Plaintiff

Equal Employment Opportunity Commission

represented by Karen E Nutter EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−4773 Email: karen.nutter@eeoc.gov TERMINATED: 05/09/2006 LEAD ATTORNEY

Mary Joleen O'Neill Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5044 Fax: 602−640−5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Clifford Shanley Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5007 Fax: 602−640−5009 Email: sally.shanley@eeoc.gov TERMINATED: 10/20/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrea Gail Baran Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5016 Fax: 602−640−5009 Email: andrea.baran@eeoc.gov ATTORNEY TO BE NOTICED

C Emanuel Smith EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5033 Fax: 602−640−5009 Email: emanuel.smith@eeoc.gov

Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 2 of 9
TERMINATED: 03/21/2006
Christopher Robert Houk Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5049 Email: christopher.houk@eeoc.gov ATTORNEY TO BE NOTICED
James P eDriscoll−MacEachron Office of the Attorney General − Phoenix 1275 W Washington St. Phoenix, AZ 85007−2997 602−542−8118 Fax: 602−542−8308 Email: james.driscoll−maceachron@eeoc.gov ATTORNEY TO BE NOTICED
Katherine J Kruse EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5029 Fax: 602−640−5009 Email: katherine.kruse@eeoc.gov TERMINATED: 01/14/2010 ATTORNEY TO BE NOTICED
Lucila G Rosas EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012 602−640−5025 Fax: 602−640−5009 Email: lucila.rosas@eeoc.gov TERMINATED: 06/24/2010 ATTORNEY TO BE NOTICED
Valerie Leigh Meyer US EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−2504 602−640−4988 Fax: 602−640−5009 Email: valerie.meyer@eeoc.gov TERMINATED: 10/20/2010 ATTORNEY TO BE NOTICED

V. Defendant Bashas' Incorporated

represented by Stephanie J Quincy Steptoe & Johnson LLP − Phoenix, AZ Collier Center 201 E Washington St., Ste. 1600 Phoenix, AZ 85004−2382 602−257−5200 Fax: 602−257−5299 Email: stephanie.quincy@quarles.com

Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 3 of 9

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Navajo Nation Rule 19 Defendant

represented by Lisa M Enfield , Frye Law Firm PC 10400 Academy NE Ste 310 Albuquerque, NM 87111 505−296−9400 Fax: 505−296−9401 Email: lenfield@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul E Frye Frye Law Firm PC 10400 Academy Rd. NE, Ste. 310 Albuquerque, NM 87111 505−296−9400 Fax: 505−296−9401 Email: pef@fryelaw.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Denetsosie Navajo Nation Department of Justice PO Drawer 2010 Window Rock, AZ 86515 928−871−6345 Fax: 928−871−6177 Email: louisdenetsosie@yahoo.com ATTORNEY TO BE NOTICED

Paul Wesley Spruhan Navajo Nation Dept of Justice PO Box 2010 Window Rock, AZ 86515 928−871−6275 Fax: 928−871−6177 Email: pspruhan@nndoj.org ATTORNEY TO BE NOTICED

Date Filed 08/17/2005 08/17/2005 09/06/2005
09/13/2005 09/14/2005 09/14/2005

# Docket Text
1 COMPLAINT, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Rosas, Lucila) (Entered: 08/17/2005)
2 Summons Issued as to Bashas' Inc, Navajo Nation. (Attachments: # 1 Supplement)(MRB, ) (Entered: 08/22/2005)
3 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Bashas' Inc served on 8/25/2005, answer due 9/14/2005; Navajo Nation served on 8/29/2005, answer due 9/19/2005. (Attachments: # 1 Supplement Service to Navajo Nation)(Rosas, Lucila) (Entered: 09/06/2005)
4 First MOTION for Extension of Time to File Answer or Otherwise Plead by Navajo Nation. (Denetsosie, Louis) (Entered: 09/13/2005)
5 ANSWER to Complaint by Bashas' Inc.(Quincy, Stephanie) (Entered: 09/14/2005)
6 RESPONSE in Opposition re 4 First MOTION for Extension of Time to File Answer or Otherwise Plead filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 09/14/2005)

Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 4 of 9

09/15/2005 09/15/2005 09/19/2005 10/14/2005 10/19/2005 10/19/2005 10/24/2005
10/24/2005
10/26/2005 10/31/2005 11/01/2005 11/01/2005 11/01/2005 11/02/2005 02/09/2006
03/16/2006 03/21/2006 04/05/2006

7 RESPONSE to Motion re 4 First MOTION for Extension of Time to File Answer or Otherwise Plead filed by Bashas' Inc. (Quincy, Stephanie) (Entered: 09/15/2005)
8 ORDER granting 4 Motion for Extension of Time to Answer. Navajo Nation answer due 11/3/2005 . Signed by Judge Stephen M McNamee on 9/15/05. (LCF) (Entered: 09/15/2005)
9 Standard Civil Track Initial ORDER . Signed by Judge Stephen M McNamee on 9/19/05. (TCA, ) (Entered: 09/19/2005)
10 MOTION to Stay Proceedings Pending Petition for Writ of Certiorari by Navajo Nation. (Attachments: # 1 # 2)(Denetsosie, Louis) (Entered: 10/14/2005)
11 MOTION for Admission Pro Hac Vice by Paul E Frye on behalf of Navajo Nation. (BAS, ) (Entered: 10/24/2005)
13 MOTION for Admission Pro Hac Vice for Lisa M Enfield on behalf of Navajo Nation. (BAS, ) (Entered: 10/24/2005)
12 ORDER pursuant to General Order 05−25 granting 11 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/24/2005)
14 ORDER pursuant to General Order 05−25 granting 13 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/24/2005)
15 Corporate Disclosure Statement by Bashas' Inc. (Quincy, Stephanie) (Entered: 10/26/2005)
16 Joinder re 10 MOTION to Stay Proceedings Pending Petition for Writ of Certiorari by Defendants Bashas' Inc, Navajo Nation. (Attachments: # 1 Exhibit A−J)(Bacalzo, Rachel) (Entered: 10/31/2005)
17 Joinder re 16 Joinder Corrected by Defendants Bashas' Inc, Navajo Nation. (Bacalzo, Rachel) (Entered: 11/01/2005)
18 First MOTION for Expedited Ruling on Motion for Stay re 10 MOTION to Stay Proceedings Pending Petition for Writ of Certiorari by Navajo Nation. (Frye, Paul) (Entered: 11/01/2005)
19 RESPONSE in Opposition re 10 MOTION to Stay Proceedings Pending Petition for Writ of Certiorari filed by Equal Employment Opportunity Commission. (Nutter, Karen) (Entered: 11/01/2005)
20 ORDER granting 10 Motion to Stay proceedings pending Petition for Writ of Certiorari; Stay Deadline set for 5/2/2006.. Signed by Judge Stephen M McNamee on 11/1/05. (MAP, ) (Entered: 11/02/2005)
21 MOTION for Leave to File Excess Pages for Motion to Dismiss and Supporting Memorandum by Navajo Nation. (Attachments: # 1 Exhibit Proposed Motion to Dismiss and Supporting Memorandum# 2 Exhibit to Proposed Motion to Dismiss and Supporting Memorandum)(Frye, Paul) (Entered: 02/09/2006)
22 ORDER granting 21 Navajo Nation's Motion for Leave to File Excess Pages. Signed by Judge Stephen M McNamee on 3/16/06. (TLJ) (Entered: 03/16/2006)
23 NOTICE of Attorney Substitution by Sally Clifford Shanley (Shanley, Sally) (Entered: 03/21/2006)
24 MOTION to Dismiss Case For Lack of Subject Matter Jurisdiction, Lack of Personal Jurisdiction, Insufficiency of Process, Failure to State a Claim, Lack of Capacity, Failure to Exhaust Tribal Remedies and Failure to Join the United States as an Indispensable Party and Memorandum in Support Thereof by Navajo Nation.

Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 5 of 9

04/21/2006 04/21/2006 04/24/2006
05/05/2006 05/05/2006 05/09/2006 05/12/2006 05/24/2006 06/06/2006 06/23/2006 06/29/2006 11/02/2006
11/20/2006 12/14/2006
12/20/2006

(Attachments: # 1 Exhibit)(Frye, Paul) (Entered: 04/05/2006)
25 MOTION to Continue To Engage in Discovery Pursuant to Rules 56(f) and 26 by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit # 2 Text of Proposed Order # 3 Text of Proposed Order)(Nutter, Karen) (Entered: 04/21/2006)
26 ERRATA re 25 MOTION to Continue To Engage in Discovery Pursuant to Rules 56(f) and 26 by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit)(Nutter, Karen) (Entered: 04/21/2006)
27 ORDER granting 25 the EEOC's request for an expedited ruling vacating the May 5, 2006 deadline for the EEOC and Bashas' Inc. to respond to the Navajo Nation's motion to dismiss. VACATING the May 5, 2006 deadline for the EEOCand Bashas' Inc. to respond to the Navajo Nation's motion to dismiss. no later than May 5, 2006, the Navajo Nation and Bashas' Inc. shall file a response to the EEOC's Motion for Continuance. Any response shall be served by electronic filing. no later than May 12, 2006, the EEOC may file a reply to any response to its Motion for Continuance. Any reply shall be served by electronic filing. Signed by Judge Stephen M McNamee on 04/24/06. (KCS) (Entered: 04/24/2006)
28 RESPONSE in Opposition re 25 MOTION to Continue To Engage in Discovery Pursuant to Rules 56(f) and 26 filed by Navajo Nation. (Frye, Paul) (Entered: 05/05/2006)
29 RESPONSE in Opposition re 25 MOTION to Continue To Engage in Discovery Pursuant to Rules 56(f) and 26 filed by Bashas' Inc. (Quincy, Stephanie) (Entered: 05/05/2006)
30 NOTICE of Attorney Substitution by Katherine J Kruse (Kruse, Katherine) (Entered: 05/09/2006)
31 REPLY to Response to Motion re 25 MOTION to Continue To Engage in Discovery Pursuant to Rules 56(f) and 26 filed by Equal Employment Opportunity Commission. (Nutter, Karen) (Entered: 05/12/2006)
32 Notice re Errata by Navajo Nation (Frye, Paul) (Entered: 05/24/2006)
33 MOTION to Stay Proceedings Pending Resolution of EEOC v. Peabody Western Coal Co., No. CIV 01−1050−PHX−MHM by Navajo Nation. (Frye, Paul) (Entered: 06/06/2006)
34 RESPONSE in Opposition re 33 MOTION to Stay Proceedings Pending Resolution of EEOC v. Peabody Western Coal Co., No. CIV 01−1050−PHX−MHM filed by Equal Employment Opportunity Commission. (Nutter, Karen) (Entered: 06/23/2006)
35 REPLY to Response to Motion re 33 MOTION to Stay Proceedings Pending Resolution of EEOC v. Peabody Western Coal Co., No. CIV 01−1050−PHX−MHM filed by Navajo Nation. (Frye, Paul) (Entered: 06/29/2006)
36 Notice re of Supplemental Authority by Navajo Nation re 24 MOTION to Dismiss Case For Lack of Subject Matter Jurisdiction, Lack of Personal Jurisdiction, Insufficiency of Process, Failure to State a Claim, Lack of Capacity, Failure to Exhaust Tribal Remedies and Failure to Join the United States as an Indi (Frye, Paul) (Entered: 11/02/2006)
37 RESPONSE re 36 Other Notice, Navajo Nation's Notice of Supplemental Authority by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Nutter, Karen) (Entered: 11/20/2006)
38 MEMORANDUM OF DECISION AND ORDER granting 33 Motion to Stay. All proceedings in the instant case are STAYED pending the issuance of the Ninth Circuit's mandate in CV 01−1050−PHX−MHM. ORDER denying without prejudice 24 Motion to Dismiss Case to RE−FILING the same or a revised motion within 20 court days after the Ninth Circuit's mandate issues in CV 01−1050−PHX−MHM.. Signed by Judge Stephen M McNamee on 12/13/06.(TLJ) (Entered: 12/14/2006)
39 NOTICE of Attorney Substitution by Lucila G Rosas (Rosas, Lucila) (Entered: 12/20/2006)

Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 6 of 9

02/26/2007 01/22/2009
02/17/2009 02/23/2009 02/23/2009 07/16/2009 01/07/2010
01/07/2010 01/08/2010 01/13/2010 01/13/2010
01/14/2010
06/15/2010
06/21/2010 06/23/2010 06/24/2010 06/24/2010
07/19/2010 10/04/2010
10/04/2010 10/20/2010

40 NOTICE of Change of Address by Stephanie J Quincy (Quincy, Stephanie) (Entered: 02/26/2007)
41 Minute Order: The parties to submit a status report no more than 5 pages in length by 2/23/2009. Status Report due by 2/23/2009. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/22/2009)
42 STATUS REPORT by Navajo Nation. (Frye, Paul) (Entered: 02/17/2009)
43 STATUS REPORT by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 02/23/2009)
44 STATUS REPORT by Bashas' Inc. (Quincy, Stephanie) (Entered: 02/23/2009)
45 NOTICE OF FILING BANKRUPTCY Upon the Record as to Defendant Bashas', Inc. by Bashas' Inc (Attachments: # 1 Exhibit A)(Quincy, Stephanie) (Entered: 07/16/2009)
46 Minute Order: The parties are to submit a status report no more than 5 pages in length to the Court by 2/1/2010. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/07/2010)
47 STATUS REPORT by Navajo Nation. (Frye, Paul) (Entered: 01/07/2010)
48 STATUS REPORT by Bashas' Inc. (Quincy, Stephanie) (Entered: 01/08/2010)
49 STATUS REPORT by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/13/2010)
50 MOTION to Withdraw as Attorney Katherine J. Kruse by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 01/13/2010)
51 ORDER granting 50 Motion to Withdraw as Attorney; Katherine J Kruse is withdrawn as counsel for plaintiff; Mary Jo ONeill, Sally C Shanley, and Lucila G Rosas remain as counsel of record for the EEOC. Signed by Judge Stephen M McNamee on 1/14/10.(REW, ) (Entered: 01/14/2010)
52 Minute Order: The parties to submit a status report no more than 5 pages in length by 7/19/2010. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 06/15/2010)
53 STATUS REPORT by Navajo Nation. (Frye, Paul) (Entered: 06/21/2010)
54 STATUS REPORT by Bashas' Incorporated. (Quincy, Stephanie) (Entered: 06/23/2010)
55 STATUS REPORT Revised by Navajo Nation. (Frye, Paul) (Entered: 06/24/2010)
56 NOTICE of Attorney Substitution by Valerie Leigh Meyer adding Valerie Leigh Meyer,Valerie Leigh Meyer for Equal Employment Opportunity Commission (Meyer, Valerie) (Entered: 06/24/2010)
57 STATUS REPORT by Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 07/19/2010)
58 MOTION to Dismiss Case for Lack of Subject Matter Jurisdiction, Lack of Personal Jurisdiction, Insufficiency of Process, Failure to State a Claim, Lack of Capacity, Failure to Exhaust Tribal Remedies, and Failure to Join the United States as an Indispensable Party by Navajo Nation re 38 Order on Motion to Stay, Order on Motion to Dismiss. (Attachments: # 1 Text of Proposed Order)(Frye, Paul) Modified on 10/4/2010 (TLJ). CORRECTION from incorrect event selected. (Entered: 10/04/2010)
59 MOTION to Stay Proceedings by Navajo Nation. (same pdf as Doc. 58) (TLJ) (Entered: 10/04/2010)
60 NOTICE of Attorney Substitution by James P Driscoll−MacEachron on behalf of Equal Employment Opportunity Commission (Driscoll−MacEachron, James) Modified on 10/21/2010 (TLJ). DOCKET updated to reflect plaintiff. (Entered: 10/20/2010)

Case: 2:05-cv-2382 As of: 10/17/2016 03:32 PM MST 7 of 9

10/20/2010 10/20/2010 10/21/2010 10/22/2010 10/25/2010 10/25/2010
11/04/2010 11/04/2010 11/10/2010 11/18/2010
12/16/2010 12/17/2010
12/20/2010
01/27/2011 01/31/2011

61 NOTICE of Attorney Substitution by Andrea Baran on behalf of Equal Employment Opportunity Commission (Driscoll−MacEachron, James) Modified on 10/21/2010 (TLJ). DOCKET updated to reflect correct attorney. (Entered: 10/20/2010)
62 AMENDED NOTICE of Attorney Substitution by Andrea Gail Baran on behalf of Equal Employment Opportunity (Baran, Andrea) Modified on 10/21/2010 (TLJ). DOCKET updated to reflect plaintiff. (Entered: 10/20/2010)
63 RESPONSE in Opposition re 59 MOTION to Stay filed by Equal Employment Opportunity Commission. (Driscoll−MacEachron, James) (Entered: 10/21/2010)
64 MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Lack of Jurisdiction by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Driscoll−MacEachron, James) (Entered: 10/22/2010)
65 First MOTION for Extension of Time to File Response/Reply as to 63 Response in Opposition to Motion by Navajo Nation. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Frye, Paul) (Entered: 10/25/2010)
66 ORDER − IT IS ORDERED GRANTING Pla EEOC's 64 Unopposed Motion for Extension of Time to File Response to the Navajo Nation's Motion to Dismiss. FURTHER ORDERED that the deadline for Pla to file its Response to the Navajo Nation's re−filed 58 MOTION to Dismiss is extended to 12/8/10. Signed by Judge Stephen M McNamee on 10/25/10. (SAT) (Entered: 10/25/2010)
67 Joinder re 58 MOTION to Dismiss for Lack of Jurisdiction, 59 MOTION to Stay by Defendant Bashas' Incorporated. (Quincy, Stephanie) (Entered: 11/04/2010)
68 REPLY to Response to Motion re 59 MOTION to Stay filed by Navajo Nation. (Frye, Paul) (Entered: 11/04/2010)
69 NOTICE of Appearance by Christopher Robert Houk on behalf of Equal Employment Opportunity Commission (Houk, Christopher) (Entered: 11/10/2010)
70 ORDER:ORDERED that the Navajo Nations Motion to Stay Proceedingsis GRANTED at this time only to the extent that all proceedings in the instant case areSTAYED pending expiration of the date for filing of a petition for a writ of certiorari in thePeabody Appeal.FURTHER ORDERED that the Navajo Nations Motion to Dismiss isDENIED WITHOUT PREJUDICE TO REFILING the same or a revised motion withinfourteen (14) days after the expiration of the last day for a party to the Peabody Appeal to filea petition for a writ of certiorari.. Signed by Judge Stephen M McNamee on 11/17/2010.(TCA) (Entered: 11/18/2010)
71 ORDER : Status Conference set for 1/11/2011 03:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 12/16/2010. (TCA) (Entered: 12/16/2010)
72 STATUS REPORT and MOTION to Vacate 70 Order on Motion to Dismiss/Lack of Jurisdiction, Order on Motion to Stay, Order on Motion for Extension of Time to File Response/Reply,,,,,, 71 Order, Set/Reset Hearings by Navajo Nation. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Frye, Paul) Modified on 12/20/2010 to reflect second part of two−part document. (SAT). (Entered: 12/17/2010)
73 ORDER staying proceedings in this case pending expiration ofthe extended deadline for filing of a petition for a writ of certiorari in the Peabody Appeal.FURTHER ORDERED GRANTING Defendant Navajo Nations Motion(Doc. 72) to vacate the status conference scheduled for Tuesday, January 11, 2011 at 3:00p.m.IT IS FURTHER ORDERED that Defendant Navajo Nation is to file written noticeby February 4, 2011 updating the Court on the status of the Peabody Appeal.. Signed by Judge Stephen M McNamee on 12/20/2010.(TCA) (Entered: 12/20/2010)
74 MOTION to Stay re 73 Order on Motion to Vacate,, and Status Report by Navajo Nation. (Attachments: # 1 Text of Proposed Order)(Frye, Paul) (Entered: 01/27/2011)
75 ORDER GRANTING Defendant Navajo Nations Motion forExtension of Stay (Doc. 74) pending either the grant or denial of its Petition for Writ ofCertiorari in the Peabody Appeal. FURTHER ORDERED that Defendant Navajo Nation is ordered to file noticewith the Court within seven days upon either the grant or denial of its

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Petition for Writ ofCertiorari in the Peabody Appeal. Signed by Judge Stephen M McNamee on 1/31/2011.(TCA) (Entered: 01/31/2011)
76 STATUS REPORT by Navajo Nation. (Frye, Paul) (Entered: 10/03/2011)
77 ORDER re 76 Status Report filed by Navajo Nation Status Conference set for 10/24/2011 at 01:30 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 10/13/2011. (TCA) (Entered: 10/13/2011)
78 Minute Entry. Proceedings held before Judge Stephen M McNamee: Appearances: Andrea Baran/James Driscoll−MacEachron for plaintiff; Stephanie Quincy for defendant Bashas; Lisa Enfield/Paul Frye for defendant Navajo NationStatus Conference held on 10/24/2011. Case discussion held. Parties to provide to the Court a copy of the lease and the deposition of the Secretary of the Interior and provide copies to each other. Notice to be filed with Court. Court will enter an order. (ECRO Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 10/24/2011)
79 TRANSCRIPT REQUEST by Navajo Nation for proceedings held on 10/24/2011 before Judge Stephen M. McNamee.. (Frye, Paul) (Entered: 10/25/2011)
80 NOTICE re Service of Deposition of Stewart L. Udall by Navajo Nation re 78 Status Conference,, . (Attachments: # 1 Exhibits)(Frye, Paul) (Entered: 10/25/2011)
81 NOTICE re Service of Lease Between Bashas' Inc. and Navajo Nation by Bashas' Incorporated re 78 Status Conference,, . (Attachments: # 1 Exhibit A − Lease)(Quincy, Stephanie) (Entered: 10/26/2011)
82 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference Proceedings held on 10/24/2011, before Judge Stephen M McNamee. Court Recorder Vicki Reger /Transcriber AVTranz. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 11/22/2011. Redacted Transcript Deadline set for 12/2/2011. Release of Transcript Restriction set for 1/30/2012. (BAS) (Entered: 11/01/2011)
83 TRANSCRIPT REQUEST by Peabody Western Coal Company for proceedings held on 10/24/2011 before Judge MCNAMEE.. (King, Kathryn) (Entered: 11/01/2011)
84 TRANSCRIPT REQUEST by Equal Employment Opportunity Commission for proceedings held on 10/24/2011 before Judge Stephen M. McNamee.. (Driscoll−MacEachron, James) (Entered: 11/03/2011)
85 First MOTION to Amend/Correct 1 Complaint by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Amended Complaint, # 2 Text of Proposed Order)(Driscoll−MacEachron, James) (Entered: 11/04/2011)
86 ORDER GRANTING EEOC's First Motion for Leave to Amend Its Complaint Doc. 85 . Signed by Judge Stephen M McNamee on 11/22/2011.(KMG) (Entered: 11/23/2011)
87 ORDER STAYING this matter pending the disposition of motions of a related case currently being litigated in this District, EEOC v. Peabody Western Coal Co., No. CV 01−1050−PHX−JWS. FURTHER ORDERED that the parties are not required to file interim status. reports regarding the progress of the Peabody Western Coal litigation. FURTHER ORDERED that at an appropriate juncture the parties may move in this Court to vacate the stay and resume this litigation to its conclusion. Signed by Senior Judge Stephen M McNamee on 4/6/2012. (KMG) (Entered: 04/06/2012)
88 NOTICE re Order and Judgment in Related Matter by Navajo Nation . (Frye, Paul) (Entered: 10/31/2012)
89 ORDER Status Conference set for 11/18/2014 at 02:30 PM in Courtroom 401, 401 West Washington Street, Phoenix, AZ 85003 before Senior Judge Stephen M McNamee. Signed by Senior Judge Stephen M McNamee on 11/4/2014. (LMR) (Entered: 11/05/2014)

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90 NOTICE of Appearance by Paul Wesley Spruhan on behalf of Navajo Nation. (Spruhan, Paul) (Entered: 11/06/2014)
91 STIPULATION of Dismissal by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Driscoll−MacEachron, James) (Entered: 11/07/2014)
92 ORDER pursuant to the parties' 91 Stipulation of Dismissal: DISMISSING WITH PREJUDICE any and all claims with all parties to bear their respective costs and attorney's fees. Signed by Senior Judge Stephen M McNamee on 11/10/2014. (KMG) (Entered: 11/12/2014)