9th Circuit vacates dismissal of ex-Telesource staff’s $2M disability suit

Manglona

The U.S. Court of Appeals for the Ninth Circuit has vacated the U.S. District Court for the NMI’s order that dismissed a $2-million employment discrimination lawsuit filed by a former employee of the then-Telesource CNMI Inc. against his former employers over his alleged termination due to his disability from a vehicular accident.

Ninth Circuit Judges William C. Canby Jr., William A. Fletcher, and Consuelo M. Callahan pointed out that it is not clear from the District Court’s order whether the District Court considered the effect of plaintiff Garabed O. Mirzoian’s filing of the complaint with the CNMI Department of Labor on the issue of exhaustion of administrative orders.

The Ninth Circuit judges remanded Mirzoian’s case for the District Court to consider whether the plaintiff could be deemed to have constructively filed his claims with the Equal Employment Opportunity Commission on the day he filed his charge with CNMI Labor, and therefore exhausted his administrative remedies at that time.

In a pro se complaint or without a lawyer, Mirzoian sued former Telesource chief executive officer Nidal Z. Zayed and general manager Michael N. El-Rahl with wrongful termination, employment discrimination, disability discrimination, for pain and suffering, and emotional distress.

According to Mirzoian, Telesource changed its name to Pernix Group Inc. and that El-Rahl and Zayed are now based in the company’s offices in Fiji Islands and Illinois, respectively.

The plaintiff said Telesource terminated him in 2006 after finding he was injured as a result of a vehicular accident involving two buses.

He said he suffered serious injuries during the accident that took place during the scope of his employment with Telesource.

Mirzoian said before he was medically referred to Guam, Telesource tried to negotiate with a lower pay for him because he had received a letter from a doctor stating he could work “light duty only.”

Mirzoian said he refused the offer because he was hoping that his nerve problem could be fixed.

He said El-Rahl advised him that if he does not take or sign the agreement he will be fired.

He said he was subsequently medically referred to the Philippines for surgery.

The plaintiff said he was then terminated without cause on the day the lower pay was offered.

He added that he is a shareholder of Telesource.

On Feb. 16, 2016, the District Court dismissed the case due to Mirzoian’s failure to establish that he was entitled to equitable tolling of the 180-day period to file a charge with the EEOC or a

300-day period if he first files a charge with an authorized state agency.

In this case, the actions complained of occurred in 2006, and Mirzoian did not file charges with EEOC until 2015.

Because plaintiff did not explain why he filed over nine years after the actions at issue, the District Court dismissed the complaint without prejudice. The District Court allowed Mirzoian to refile the case to address this deficiency.

Mirzoian filed a first amended complaint six days after the court’s order of dismissal.

On Jan. 19, 2018, U.S. District Court for the NMI Chief Judge Ramona V. Manglona dismissed Mirzoian’s lawsuit for lack of subject matter jurisdiction, concluding that the plaintiff failed to exhaust administrative remedies.

Manglona determined that the amended complaint fails to comply with the court’s prior order.

Manglona directed the clerk of court to close the case.

Mirzoian appeals pro se from the Disrict Court’s order dismissing for lack of subject matter jurisdiction his employment action alleging wrongful termination in violation of Title VII, the Americans with Disabilities act, the Genetic Information Nondiscrimination Act, and the Age Discrimination Act.

In vacating the District Court’s order, the Ninth Circuit judges said although Mirzoian did not file a discrimination charge with the EEOC until 2015, he filed a discrimination complaint with CNMI Labor within 18 days of his termination in 2006.