Opinion
No. CV 04-2113-PHX-NVW.
May 15, 2006
ORDER
Defendant Bashas', Inc., moves to dismiss this action against it for race discrimination in employment based upon the absence of an indispensable party, the Navajo Nation. (Motion to Dismiss, doc. # 21.)
I. Nature of the Action and of the Motion to Dismiss
Plaintiff Jason Willis ("Willis") alleges that Defendant Bashas', Inc. ("Bashas"), "refused to hire Mr. Willis because of his race, African-American." (Second Amended Complaint, doc. # 32 at 1.) Bashas is a state-wide supermarket retailer with stores on the Navajo Reservation. Willis alleges that he applied for open positions for which he was qualified at Bashas' store in Pinon, AZ, and that "no other qualified applicants of Navajo descent . . . had applied for and/or . . . were being considered. . . ." ( Id. at ¶ 10.) He further alleges that Bashas' "did not have any qualified applicants for the position . . . yet it refused to hire Mr. Willis because he was African-American" and he was told that was the reason. ( Id. at ¶¶ 11 and 15.) When Willis returned to Bashas' later, he was informed that another Bashas' store would hire him if he would marry his girlfriend, who is Navajo. ( Id. at ¶ 17.) Willis pleads claims for racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)(2), and for intentional infliction of emotional distress. (doc. # 21.)
Bashas' moves under Rules 12(b)(6), 12(b)(7), and 19 of the Federal Rules of Civil Procedure to dismiss, arguing that the Navajo Nation is a necessary and indispensable party to this action that cannot be joined because of tribal sovereign immunity. Though Willis has named the Navajo Nation as a "Rule 19 Defendant" in his Second Amended Complaint, he has not served the Nation, and it obviously cannot be sued because of sovereign immunity. Dawavendewa v. Salt River Project Agricultural Improvement and Power District, 276 F.3d 1150, 1159-61 (9th Cir. 2002).
Bashas' lease with the Navajo Nation under which it operates its stores requires employment preference for Navajos, including affirmative recruitment goals and timetables, and compliance with the Navajo Preference in Employment Act, 15 Navajo Nation Code §§ 601 et seq. (2005).
II. Analysis
It is settled law in this circuit that an employment discrimination action against an on-reservation employer based on the employer's compliance with (that is, failure to breach) a tribal lease requiring Indian or tribal preference in employment may not proceed in the absence of the tribe, which is an indispensable party under Rule 19(b), Fed.R.Civ.P. Dawavendewa, 276 F.3d at 1161. The plaintiff in Dawavendewa directly attacked the employer's compliance with the lease-mandated tribal preference. 276 F.3d at 1153.
Accordingly, if Willis were suing Bashas' for not hiring him to comply with the Navajo preference clause of its lease, the Nation would be a Rule 19(b) indispensable party that cannot be joined, and this action would have to be dismissed. The vagueness of the Second Amended Complaint might allow it to be so read, but Willis's brief narrows his claim to plain discrimination on account of him being African-American, unconnected with compliance with the lease preference provision. He does not challenge Bashas' defense of compliance with its tribal lease, also obligating it to comply with the Navajo Preference in Employment Act. "Employer could comply quite easily with both NPEA and Title VII. . . . [T]o the extent that Employer's actions exceeded the scope of the NPEA, Employer is liable to Mr. Willis pursuant to Title VII." (doc. # 26 at 2-3.) Nothing in Dawavendewa immunizes an on-reservation employer from Title VII suit for employment discrimination not under color of preference required by a lease or contract with the tribe.
Two clarifications are in order. First, Willis may intend to argue that Title VII requires Bashas' to employ a non-Navajo rather than hold a position open longer in hopes of recruiting a qualified Navajo to meet its employment preference obligation and goals. (doc. # 26 at 2-3.) Bashas' is entitled to the full sweep of its lease obligations as a defense to the Title VII claim. A crabbed reading of those lease obligations could implicate the interests of the other party to the lease, the Navajo Nation. But the court may eliminate absentee indispensability "by protective provisions in the judgment, by shaping of relief, or other measures" to lessen or avoid the prejudice. Rule 19(b), Fed.R.Civ.P. Accordingly, the employment preference clause in the lease will be given its fair import, and both the preference language and the recruitment goals and timetable will be construed to fairly entitle Bashas' to recruit qualified Navajos and to hold positions open to get them. The court's shaping of relief and permitted issues will eliminate any indispensability concerns if Willis should contend that Bashas' looked too long for a Navajo, rather than rejecting him because he is African-American, as he alleges in the Second Amended Complaint.
Second, there is no case or controversy here concerning the lawfulness of the preference given to non-Navajo spouses of Navajos under the Navajo Preference in Employment Act. Although Willis alleges that Bashas' invited him to come within that preference by marrying his Navajo girlfriend, he did not marry her. (doc. # 32 ¶ 17.) It is not alleged that the person or persons hired for the positions Willis sought were chosen over him because of that preference.
In summary, though the Motion to Dismiss (doc. # 21) will be denied, the considerations of indispensability that it raises mark boundaries on what is left of this action. Depending on the evidence, there may be little or nothing left; but the Navajo Nation is not an indispensable party to that residuum.
IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss (doc. # 21) is denied.