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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gerald Harris, 

Plaintiff, 

v. 

ASARCO LLC, 

Defendant. 

No. CV-15-00449-TUC-JAS

ORDER 

 Pending before the Court are Plaintiff’s Motion for Conditional Referral to the 

Department of Labor (Writ of Assistance), with a Stay of Proceedings (Doc. 44), and 

Plaintiff’s Motion for Oral Argument and Revisit the Motion for Appointment of Counsel 

(Doc. 47). Defendant filed responses in opposition to the motions. (Docs. 45, 48.) 

Plaintiff has not filed replies to the responses, and the time to do so has lapsed. This 

matter is ripe for review. 

I. FACTUAL HISTORY 

 In April of 2013, Plaintiff notified Defendant’s Human Resources that he was 

being treated differently from other employees due to his disability. (Doc. 1 at ¶ 14.) 

Plaintiff suffers from Asperger’s Syndrome/Autism Spectrum Disorder. Id. at ¶ 11. 

Plaintiff alleges that after he requested accommodations he was needlessly disciplined 

and discriminated against due to his disability. Id. at ¶¶ 19-23. On May 15, 2014, 

Defendant terminated Plaintiff. Id. at ¶ 50. 
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 A. EEOC Charge

 In June of 2013, Plaintiff filed a charge with the Equal Employment Opportunity 

Commission (“EEOC”), which was amended for the last time in May of 2014. Id. at 

¶¶ 53, 55; Def.’s Resp. (Doc. 45), U.S. EEOC Charge No. 540-2013-02425 (Ex. “1”); 

Def.’s Resp. (Doc. 45), U.S. EEOC Amended Charge No. 540-2013-02425 (Ex. “4”). 

 On June 24, 2015, the EEOC dismissed Plaintiff’s charge and notified Plaintiff of 

his right to sue. (Def.’s Resp. (Doc. 45), U.S. EEOC Dismissal and Notice of Rights (Ex. 

“5”).) Additionally, the EEOC notified Plaintiff “If you need to inspect or obtain a copy 

of information in EEOC’s file on the charge, please request it promptly in writing and 

provide your charge number (as shown on your Notice). While EEOC destroys charge 

files after a certain time, all charge files are kept for at least 6 months after our last action 

on the case. Therefore, if you file suit and want to review the charge file, please make 

your review request within 6 months of this Notice. (Before filing suit, any request 

should be made within the next 90 days.).” Id. (emphasis in original). 

 B. MSHA Complaint

 In March of 2014, Plaintiff filed a complaint with the Mine Safety and Health 

Administration (“MSHA”). (Doc. 44 at ¶ 3.) MSHA sent Plaintiff a letter stating that 

MSHA did “not believe that there is sufficient evidence to establish, by a preponderance 

of the evidence that a violation of Section 105(c) occurred. For that reason, the Secretary 

of Labor will not file a discrimination case with the Federal Mine Safety and Review 

Commission (“Commission”) in this matter. However, you continue to have the right to 

file a discrimination case on your own behalf with the Commission. If you decide to file 

your own case, you must do so within 30 days of this letter . . . .” (Def.’s Resp. (Doc. 45), 

Letter from U.S. Dep’t of Labor, MSHA (Ex. “6”).) 

 C. Lawsuit

 Plaintiff did not provide new information to the EEOC or MSHA or file an appeal. 

(See Doc. 45.) Instead, Plaintiff filed a complaint in federal court. (Doc. 1.) There is no 

indication that Plaintiff requested his EEOC charge filed until now. (See Doc. 44.) 
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II. REQUEST FOR A STAY 

 “When deciding whether to stay a pending proceeding, a court must weigh 

competing interests including: (1) the possible damage which may result from the 

granting of a stay; (2) the hardship or inequity which a party may suffer in being required 

to go forward; and (3) the orderly course of justice measured in terms of the simplifying 

or complicating of issues, proof, and questions of law which could be expected to result 

from a stay. The moving party bears the burden of making out a clear case of hardship on 

inequity in being required to go forward.” Prescott v. Rady Children’s Hosp.-San Diego, 

265 F. Supp. 3d 1090, 1098 (S.D. Cal. 2017) (citing Landis v. N. Am. Co., 299 U.S. 248, 

255, 57 S.Ct. 163, 81 L.Ed. 153 (1936); CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 

1962)). 

 Plaintiff requests to refer this matter to the Department of Labor. (Doc. 44.) 

Plaintiff is requesting that the Department of Labor obtain additional records and review 

their existing records from the EEOC charge and the MSHA complaint and determine if 

Defendant acted in bad faith when terminating Plaintiff. Id. This is essentially a request 

that the Department of Labor conduct further investigation and reconsider Plaintiff’s 

EEOC charge and MSHA complaint outside the non-jurisdictional deadlines. Plaintiff 

asserts that he should still be permitted to make this request because the deadlines are 

non-jurisdictional. (Doc. 47 at ¶ 10.) This is incorrect. Failure to satisfy non-jurisdictional 

requirements may result in dismissal. Fed. R. Civ. P. 12(6); EEOC v. Blinded Veterans 

Ass’n, 128 F. Supp. 3d 33, 37 (D.D.C. 2015). Otherwise the deadlines put in place by 

Congress and the agency would be meaningless. Plaintiff has not provided any 

information as to why the deadlines should be tolled. (Docs. 44, 47.) Further there is no 

indication that the EEOC still possesses Plaintiff’s charge file as more than six months as 

passed since the EEOC’s last action on Plaintiff’s charge. Therefore, requiring the EEOC 

to re-evaluate their conclusions would require the EEOC to re-conduct their investigation. 

Therefore, staying the matter is not likely to simplify any matter, despite Plaintiff’s 

assertions. Finally, Plaintiff’s inquiry is more appropriately resolved through discovery 
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requests. Plaintiff may seek assistance in completing a discovery request or demand 

through Step Up to Justice.1

 Plaintiff would not be burdened by this matter continuing 

forward. 

 The Court finds that a stay is not appropriate, as this matter shall not be referred to 

the Department of Labor. 

III. REQUEST FOR REFERRAL TO DEPARTMENT OF LABOR

 It is the Court’s understanding that Plaintiff requests that this matter be referred to 

the Department of Labor, with an order that the Department of Labor conduct additional 

investigation into this matter and issue a factual ruling. (Doc. 44.) The request would be 

to limit discovery necessary in this matter as the Department of Labor will conduct 

discovery and make a factual determination as to one of Plaintiff’s claims. This request 

will be denied. It is neither the Court’s nor the Department of Labor’s responsibility to 

conduct discovery in this matter. As explained above, it is likely that the Department of 

Labor is unable to comply with this request as all applicable deadlines have long passed, 

and the EEOC has likely destroyed the relevant charge filed. (See Def.’s Resp. (Doc. 45), 

U.S. EEOC Dismissal and Notice of Rights (Ex. “5”); Def.’s Resp. (Doc. 45), Letter from 

U.S. Dep’t of Labor, MSHA (Ex. “6”).) Plaintiff may contact Step Up for Justice 

regarding advice on conducting discovery. 

IV. REQUEST FOR COUNSEL AND ORAL ARGUMENT 

 The Court finds that Plaintiff has not shown at this time that there are exceptional 

circumstances in this case that warrant appointment of counsel in this civil case. See, e.g., 

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). That motion, therefore, will be 

DENIED. 

 Plaintiff’s request for oral argument is denied, as oral argument would not be 

helpful to the Court. 

 1

 Step Up to Justice (http://www.stepuptojustice.org/) offers a free, advice-only clinic for self-represented civil litigants on Thursdays from 1:30 p.m. to 3:30 p.m. If a pro se litigant wishes to schedule a clinic appointment, she should contact the courthouse librarian, Mary Ann O’Neil, at MaryAnn_O’Neil@LB9.uscourts.gov. 
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V. REQUEST FOR DECLARATORY JUDGMENT AND MINUTE ENTRY 

 In Plaintiff’s Motion for Oral Arguments and Revisit the Motion for Appointment 

of Counsel, Plaintiff requests a “declaratory judgment and court-minute concluding that 

just-stated unsolicited legal advice [that the ex parte contact with the Court is prohibited] 

is improper-in-fact, and demonstrates malpractice.” (Doc. 47 at ¶ 9.) Defendant does not 

address this issue in their response. (See Doc. 48.) Regarding ex-parte communication, 

both parties have been notified that “[t]he parties shall not contact the Court’s staff (i.e., 

Law Clerks or the Judicial Assistant) telephonically or by e-mail to ask questions or 

express concerns regarding cases pending before the Court, and the Court has directed its 

staff not to entertain any such informal communication.” (Doc. 3 at 1.) Therefore, except 

for the exceptions listed in the Court’s September 23, 2015 Order, the parties shall not 

contact the Court. The request is denied to the extent any confusion has not been 

clarified. 

VI. ADMONISHMENT AND SETTLEMENT CONFERENCE 

 The Court shall not issue an admonishment at this time. 

 The Court believes that a settlement conference mediated by a Magistrate Judge 

would be helpful to the parties at this point. Therefore the Court will order the parties to 

participate in a settlement conference. The Court will also issue a stay of the current 

deadlines in recognition of the settlement conference. 

VII. CONCLUSION 

 Accordingly, 

 IT IS ORDERED that Plaintiff’s motions for referral to the Department of Labor 

with a stay (Doc. 44) and for oral arguments and appointed counsel (Doc. 47) are denied. 

 IT IS FURTHER ORDERED that Magistrate Judge Bruce G. Macdonald shall 

conduct a settlement conference at a date and time that is convenient for him, and that the 

parties shall comply with any requirements imposed by Magistrate Judge Macdonald in 

relation to the settlement conference. By no later than Friday, June 01, 2018, the parties 

shall contact Magistrate Judge Macdonald’s chambers at (520) 205-4520 to schedule the 
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settlement conference. Within seven days of the conclusion of the settlement conference, 

the parties shall file a document with the Court stating whether or not the case settled. 

 IT IS FURTHER ORDERED that due to the parties’ participation in settlement 

conference that deadlines shall be stayed until the settlement conference is resolved. 

 Dated this 3rd day of May, 2018.