No. 03-1181 ________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _________________________________________________________ MARTHA COLLIER, Plaintiff-Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE ILLINOIS DEPARTMENT OF HUMAN RIGHTS, Defendants-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division District Judge James B. Zagel _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, Room 704 Washington, D.C. 20507 (202) 663-4731 (w) (202)663-7090 (fax) ORAL ARGUMENT IS NOT REQUESTED TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF RELATED CASES 1 STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 1 STATEMENT OF THE CASE 2 1. Proceedings Below 2 2. Statement of Facts 3 3. District Court Decision 4 4. Standards of Review 6 SUMMARY OF THE ARGUMENT 7 ARGUMENT 9 I. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF'S COMPLAINT AGAINST THE COMMISSION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED 9 II. THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT WAS APPROPRIATE BECAUSE THE DISTRICT COURT LACKED SUBJECT MATTER JURISDICTION 17 CONCLUSION 20 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM TABLE OF AUTHORITIES CASES Alicea-Hernandez v. Catholic Bishop of Chicago, 2003 WL 373349 (7th Cir. Feb. 21, 2003) 6 American United Logistics, Inc. v. Catellus Dev. Corp., 2003 WL 291890 (7th Cir. Feb. 12, 2003) 6 Archie v. Chicago Truck Drivers, Helpers, and Warehouse Workers Union, 585 F.2d 210 (7th Cir. 1978) 9, 11 Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997) 10, 11 Briscoe v. LaHue, 663 F.2d 713 (7th Cir. 1981), aff'd on other grounds, 460 U.S. 325 (1983) 15 Collier v. Bankers Life & Casualty Co., 2002 WL 31870546 (N.D.Ill. Dec. 20, 2002) 2 Conley v. Gibson, 355 U.S. 41 (1957). 6, 10 District of Columbia v. Carter, 409 U.S. 418 (1972) 14 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984) 9 EEOC v. St. Anne's Hosp., 664 F.2d 128 (7th Cir. 1981) 9 Feldstein v. EEOC, 547 F. Supp. 97 (D. Mass. 1982) 12 Fonda v. Gray, 707 F.2d 435 (9th Cir. 1983) 16 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir. 1979), cert. denied, 444 U.S. 949 (1979) 10, 13, 16 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) 10, 14 Gibson v. Missouri Pac. R.R., 579 F.2d 890 (5th Cir. 1978), cert. denied, 440 U.S. 921 (1979) 10 Gillis v. United States Dep't of Health and Human Servs., 759 F.2d 565 (6th Cir.1985) 10 Golyar v. McCausland, 738 F. Supp. 1090 (W.D. Mich. 1990) 10, 12 Green v. State Bar of Texas, 27 F.3d 1083 (5th Cir.1994) 15 Griffin v. Breckenridge, 403 U.S. 88 (1971) 15 Hishon v. King & Spalding, 467 U.S. 69 (1984) 6 James v. United States, 970 F.2d 750 (10th Cir. 1992) 19 Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621 (9th Cir. 1986) 15 Lockerty v. Phillips, 319 U.S. 182 (1943) 17 Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996) 17 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) 10, 11, 12 McCrary v. Ohio Dep't of Human Servs., 229 F.3d 1153, 2000 WL 1140750 (6th Cir. 2000) 16 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002) 9, 14 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) 11 Reed v. EEOC, 100 F.3d 957, 1996 WL 636171 (6th Cir. Oct. 30, 1996) 11 Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991), cert. denied, 505 U.S. 1205 (1992) 10, 11 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997), cert. denied, 522 U.S. 957 (1997) 10 Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979) 13 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) 7 Unimex, Inc. v. Department of Housing and Urban Dev., 594 F.2d 1060 (5th Cir. 1979) 19 United States v. Mitchell, 445 U.S. 535 (1980) 19 United States v. Mitchell, 463 U.S. 206 (1983) 19, 20 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984) 10, 11, 15 STATUTES, LEGISLATIVE HISTORY, AND OTHER AUTHORITY 28 U.S.C. § 1291 1 28 U.S.C. § 1343 18 Civil Rights Statute, 42 U.S.C. § 1985 15, 18 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3) 1, 10, 18 42 U.S.C. § 2000e-5(b) 9 42 U.S.C. §2000e-6(b) 18 42 U.S.C. § 2000e-16 18 United States Constitution of America, U.S. Const. Amend. V 13 U.S. Const. Amend. XIII 14 U.S. Const. Amend. XIV 14 STATEMENT OF RELATED CASES To the Commission's knowledge, there are no prior or related appeals. STATEMENT OF JURISDICTION Although the Commission believes that the district court lacked jurisdiction over Ms. Collier's complaint against the EEOC because there is no statutory or constitutional basis for such a claim, the district court exercised jurisdiction over this suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(3). On December 20, 2002, the district court entered an order granting the EEOC's motion to dismiss the complaint. R.15. A timely notice of appeal was filed on January 23, 2003. R. 20. This Court has jurisdiction over this appeal under 28 U.S.C. §1291. STATEMENT OF ISSUES 1. Whether the district court properly dismissed the plaintiff's complaint for failure to state claim under Rule 12(b)(6) on the ground that there is no right of action against the EEOC for allegedly failing to investigate a charge of discrimination. 2. Whether the district court properly dismissed the plaintiff's complaint against the EEOC for lack of subject matter jurisdiction under Rule 12(b)(1). STATEMENT OF THE CASE 1. Proceedings Below Ms. Collier appeals, inter alia, from the district court's order dismissing her complaint against the EEOC for failure to state a claim upon which relief can be granted. R.20, Notice of Appeal. She filed suit against the EEOC, Bankers Life and Casualty Company (“Bankers”), and the Illinois Department of Human Rights (“IDHR”) and the EEOC on October 2, 2002. In that suit, she expressed her dissatisfaction with the manner in which the EEOC investigated her discrimination charge. R.1, Complaint. In separate motions, EEOC, Bankers, and IDHR sought dismissal of Ms. Collier's lawsuit. R.7, Bankers' Motion to Dismiss; R.10, IDHR Motion to Dismiss; R. _,<1> EEOC's Motion to Dismiss. The EEOC's motion sought dismissal of the claims against it pursuant to Federal Civil Procedure Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. R.–, EEOC Motion to Dismiss. On December 20, 2002, the district court granted the EEOC's motion to dismiss on the ground that Ms. Collier had failed to state a claim upon which relief can be granted and that the court lacked subject matter jurisdiction, R. 15, Dismissal Memorandum Opinion and Order.<2> In this same opinion, the court also granted Bankers' and IDHR's motions to dismiss. R.15. The court then entered judgment on its rulings. R.16, Judgment. On January 23, 2003, Ms. Collier filed a timely notice of appeal from the district court's judgment entered on December 20, 2002. R. 20, Notice of Appeal. 2. Statement of the Facts The essence of Ms. Collier's complaint against the EEOC was that the agency “failed to investigate [her] charge.” R.15 at 2. She asserted that the Commission had improperly concluded that “‘the evidence available did not indicate that plaintiff was discriminated against based on race in violation of Title VII'” because she had provided the Commission with “sufficient” documents to prove race discrimination. Id. Ms. Collier also alleged that an EEOC investigator had called her a “fool” on the telephone and that the EEOC had conspired with IDHR to prevent her claim against another employer from reaching the court in December 1998. Id. In sum, Ms. Collier alleged that the EEOC had violated her rights under Title VII and the Fifth, Thirteenth, and Fourteenth Amendments of the United States Constitution, and that it was liable pursuant to 28 U.S.C. §1343(a) and 42 U.S.C. §1985. 3. District Court Decision On December 20, 2002, the district court granted the EEOC's motion to dismiss Ms. Collier's complaint against it. Addressing first its jurisdiction to entertain Ms. Collier's claims, the district court noted that generally sovereign immunity limits its jurisdiction in cases against the government unless there is statutory authority evidencing the government's consent to be sued. R.15 at 3. Rejecting Ms. Collier's argument that section 1343 provided that statutory grant of jurisdiction, the court explained that section 1343 “confers jurisdiction only where a federal cause of action is provided by one of the substantive sections of the Civil Rights Act” and neither the two subsections of section 1343 which address claims created by 42 U.S.C. §1985 nor the last two subsections of section 1343 which address civil rights claims arising only from state action “provide for a statutory grant of juridiction for Ms. Collier's claims” against the Commission. Id. Turning to Ms. Collier's section 1985 claim against the EEOC, the court noted that the United States is not subject to suit under the conspiracy provision, it had not consented to be sued under section 1985, and section 1985 does not create or otherwise allow claims against federal officers acting under color of federal law. R.15 at 3. The court therefore concluded that the EEOC, acting under color of federal law, is not subject to suit under section 1985. It added, however, that even if there were consent to be sued, the court would still dismiss the section 1985 claim because Ms. Collier's allegations “provide no additional information with respect to the EEOC's alleged involvement in the alleged conspiracy.” Id. at 3-4. The court next concluded that Ms. Collier's constitutional claims must also fail. It stated that “[a]lthough the Fifth Amendment does restrict the federal government, it is inapplicable where an agency performs fact finding investigations and does not adjudicate or make binding determinations” and since the EEOC is such an agency, Ms. Collier has no claim under the Fifth Amendment. R.15 at 4. The court further stated that the Thirteenth Amendment is unavailing because it prohibits slavery and involuntary servitude and Ms. Collier makes no allegation that she was forced to work for Bankers. Similarly, Ms. Collier's Fourteenth Amendment claim failed because that provision is directed to state action and as a federal agency, the EEOC cannot be sued pursuant to it. Id. Finally, the court ruled that Ms. Collier's Title VII claim against the EEOC was without merit because “Title VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge.” R.15 at 4. 4. Standards of Review Review of an order dismissing a complaint for failure to state a claim upon which relief can be granted is de novo. American United Logistics, Inc. v. Catellus Dev. Corp., 2003 WL 291890, *3 (7th Cir. Feb. 12, 2003). Dismissal of the complaint under Rule 12(b)(6) should be upheld on appeal if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 507 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). See also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal of a complaint for lack of subject matter jurisdiction under Rule 12(b)(1) is also reviewed de novo. Alicea-Hernandez v. Catholic Bishop of Chicago, 2003 WL 373349, *2 (7th Cir. Feb. 21, 2003). When considering a motion to dismiss for lack of subject matter jurisdiction, the court may look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists. Id. SUMMARY OF ARGUMENT Dismissal of Ms. Collier's complaint against the EEOC for failure to state a claim was appropriate because none of the statutes on which Ms. Collier relies provides for a cause of action against the EEOC for its handling of her discrimination charge. Title VII provides neither an express nor an implied cause of action for alleged mishandling of charges. Moreover, Title VII authorizes suits only against certain specified entities, including employers, labor unions and employment agencies. The Commission plainly is not a union or employment agency, nor was it Ms. Collier's employer. Thus, the EEOC cannot be sued under Title VII for its alleged failure to investigate Ms. Collier's discrimination charge. Ms. Collier's complaint also fails to state a claim under 42 U.S.C. §1985 because she failed to allege specific or sufficient facts demonstrating a conspiracy between the Commission and any other entity to deprive her of her rights. Moreover, as the district court stated, “the United States is not subject to suit under the civil rights conspiracy [statute], nor has it consented to be sued under §1985, and §1985 does not create or otherwise allow claims against federal officers acting under color of federal law.” R.15 at 3. Next, Ms. Collier's constitutional claims fail because the United States Constitution does not provide a cause of action for the alleged mishandling of a charge of discrimination by the EEOC and her claims are insufficient to invoke the tenets and protections of the Fifth, Thirteenth and Fourteenth amendments. Finally, dismissal of Ms. Collier's complaint against the EEOC can also be upheld because the district court properly determined that it lacked subject matter jurisdiction. Title VII does not authorize jurisdiction in cases challenging the EEOC's processing of charges and thus, Ms. Collier cannot establish jurisdiction under 28 U.S.C. § 1343. Further, jurisdiction is lacking in the district court because Congress has not waived sovereign immunity for the EEOC for actions challenging the Commission's administrative management of charges. This Court therefore should affirm the district court's dismissal of Ms. Collier's complaint. ARGUMENT I. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF'S COMPLAINT AGAINST THE COMMISSION FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Ms. Collier's allegations essentially reflect her displeasure with the manner in which the EEOC investigated her discrimination charge. Title VII provides that the EEOC "shall make an investigation" of a charge filed, see 42 U.S.C. § 2000e-5(b). However, the statute does not prescribe the manner for doing so. Consequently, "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency." Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002) (quoting EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir.1984)); accord EEOC v. St. Anne's Hosp., 664 F.2d 128 (7th Cir.1981)(noting expansion of EEOC investigation of sex and religious discrimination charge to include finding that discharge was actually retaliatory); Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers Union, 585 F.2d 210, 222 (7th Cir. 1978) (holding that EEOC and its acting director could exercise their discretion by adopting findings of state commission without further investigation). While the EEOC believes that it properly processed Ms. Collier's charge, the Commission maintains that the district court properly dismissed her complaint against the EEOC because Ms. Collier undoubtedly can prove no set of facts in support of her claims that would entitle her to relief. Conley, 355 U.S. at 45-46. Collier claims that EEOC deprived her of her rights under Title VII. First, as a general matter, as this and other courts have recognized, there is no cause of action for the improper processing or investigation of a discrimination charge filed with the EEOC because Congress provided charging parties with the right of judicial de novo trial of their discrimination claims, thereby eliminating the potentially adverse effects of the agency's handling of their charges. See McCottrell v. EEOC, 726 F.2d 350, 351 & n.1 (7th Cir. 1984); also see Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir.) (per curiam), cert. denied, 522 U.S. 957 (1997); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 4 (2d Cir. 1997); Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991), cert. denied, 505 U.S. 1205 (1992); Gillis v. United States Dep't of Health and Human Servs., 759 F.2d 565, 574 (6th Cir.1985); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984); Francis-Sobel v. University of Maine, 597 F.2d 15, 17-18 (1st Cir.), cert. denied, 444 U.S. 949 (1979); Georator Corp. v. EEOC, 592 F.2d 765, 767-79 (4th Cir. 1979); Gibson v. Missouri Pac. R.R., 579 F.2d 890, 891 (5th Cir. 1978), cert. denied, 440 U.S. 921 (1979). Every federal court, including this one, that has addressed the issue raised by Ms. Collier's complaint has recognized that Congress has not authorized, either implicitly or explicitly, in Title VII or any other anti-discrimination in employment statute the right to sue the EEOC for any misfeasance or malfeasance in its handling of employment discrimination claims against employers. See, e.g., McCottrell, 726 F.2d at 351 & n.1 (Title VII); Baba, 111 F.3d at 4, 6 (Title VII and ADEA); Reed v. EEOC, 100 F.3d 957, 1996 WL 636171, at **1 (6th Cir. Oct. 30, 1996) (ADA); Scheerer, 950 F.2d at 663 (Title VII); Golyar v. McCausland, 738 F. Supp. 1090, 1095 (W.D. Mich. 1990) (ADEA and Rehabilitation Act). Instead, in every workplace anti-discrimination statute, Congress intended that charging parties dissatisfied with the administrative resolution of their discrimination complaint be permitted a second opportunity for vindication through a de novo review in a judicial forum. 42 U.S.C. § 2000e-5(f)(3); Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 365-66 (1977) (“the provisions [of the Act] allow the person aggrieved to elect to pursue his or her own remedy under this title in the [federal] courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution”); Archie, 585 F.2d at 222 (where EEOC allegedly fails to perform its statutory duties, plaintiff's remedy is to commence suit on his own behalf in district court, wherein he is entitled to review de novo of his claims). See also Ward, 719 F.2d at 314; Golyar, 738 F. Supp. at 1094 (“the legislative history of Title VII provokes the conclusion that Congress did not intend the EEOC to be subject to a lawsuit by a charging party unhappy with the Commission's procedures, administrative determinations, or other actions”); Feldstein v. EEOC, 547 F. Supp. 97, 99 (D. Mass. 1982) (“the right to sue de novo was granted as the complete remedy for EEOC misfeasance”). Therefore, contrary to Ms. Collier's assertions, Title VII has not provided her with a private right of action against the EEOC and it was proper for the district court to dismiss her Title VII claims. Second, neither the Fifth, Thirteenth nor Fourteenth Amendments offer Ms. Collier any support because nothing in the United States Constitution provides a cause of action for the alleged mishandling of discrimination charges by the EEOC. See McCottrell, 726 F.2d at 351 n.1 (in rejecting plaintiff's claim under 28 U.S.C. § 1343, which provides a jurisdictional basis for civil rights and constitutional claims, the court held there is no independent cause of action under the Constitution to challenge the EEOC's resolution of charges). As one court explained, "the [EEOC's disposition of the charge] neither deprived the appellant of any interest she may have independent of the EEOC nor denied her such substantial EEOC-administered benefits as to give rise to a constitutional claim." Francis-Sobel, 597 F.2d at 17. Moreover, nothing in Ms. Collier's claims implicate the enumerated constitutional amendments. Ms. Collier claims that the evidence she submitted to the EEOC “was prima facie proof of race discrimination” and that the agency failed to “follow guidelines which would have given plaintiff the equal protection of the law and mitigate damages.” Collier Br. at 7. In Ms. Collier's view, the EEOC never “forced” Bankers to “show cause for their discrimination,” id. at 8, and thus “[t]his breach of duty was in violation of the equal protection and due process of the fifth and fourteenth amendments to the United States Constitution and enforceable under [42 U.S.C. §1985].” Id. at 7. The Fifth Amendment, however, despite its applicability to federal actions, U.S. Const. Amend. V, does not offer Ms. Collier any support for her assertion that the EEOC violated her rights because courts have held that the Fifth Amendment due process protections do not apply to the handling of discrimination charges. Stewart v. EEOC, 611 F.2d 679, 681-82 (7th Cir. 1979) (mishandling of EEOC charge is not an "actionable wrong" under the Fifth Amendment); Francis-Sobel, 597 F.2d at 18 (Fifth Amendment due process clause provides no relief for non-employees against the EEOC for even arbitrary and capricious action); Georator Corp., 592 F.2d at 768 (when only investigative powers of agency are at issue, Fifth Amendment due process considerations do not attach). The Thirteenth Amendment proscribes slavery and involuntary servitude and nothing in Ms. Collier's allegations against the EEOC implicates this constitutional amendment. U.S. Const. Amend. XIII. Therefore, because no cause of action lies, the district court appropriately decided that Ms. Collier failed to state a claim under the Thirteenth Amendment. And, by its plain terms, the Fourteenth Amendment could not provide a cause of action against the EEOC as a federal agency because the amendment applies only to state actors. U.S. Const. Amend. XIV. As a result, because no state action was involved in EEOC's investigation of Ms. Collier's discrimination complaint, the district court properly determined that a Fourteenth Amendment claim could not be brought against EEOC. See also District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973) ("actions of the federal Government and its officers are beyond the purview of the [Fourteenth] amendment"); Newsome, 301 F.3d at 233 (holding that plaintiff “cannot bring a Fourteenth Amendment claim against the EEOC or EEOC officials”). Finally, Ms. Collier's conspiracy claim against the EEOC under section 1985, in which she contends that the EEOC, along with IDHR, deprived her of a right to due process and a hearing, is legally and factually defective, and therefore does not state a cause of action against them. Collier Br. at 7. In order to state a claim under 42 U.S.C. § 1985, a plaintiff, "must allege that two or more persons conspired to directly, or indirectly, deprive him of the equal protection of the laws or equal privileges and immunities under the laws." Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir.1994). Further, to state a § 1985(3) claim, Ms. Collier must show "some racial, or otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)); see also Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (section 1985 complaint must allege facts specific enough to suggest that such motivation underlies the defendants' actions), aff'd on other grounds, 460 U.S. 325 (1983). Even if pro se, Ms. Collier must allege more than conclusory declarations of conspiracy. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1986) (mere allegations of conspiracy without factual specificity is insufficient); Ward, 719 F.2d at 314 (granting summary judgment on complainant's conspiracy claim against the EEOC for failure to allege or prove any factual allegations of the alleged conspiracy); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (mere allegation of conspiracy is insufficient); Francis-Sobel, 597 F.2d at 17 (a section 1985 conspiracy claim requires “at least a minimum factual support of the existence of a conspiracy”). Ms. Collier's complaint lacks the required factual specificity. In the district court, and on appeal, Ms. Collier essentially takes issue with the EEOC's investigation of her race discrimination charge and concludes, without more, that the Commission was in collusion with IDHR to violate her rights “to prohibit [her] guaranteed rights to a fair hearing.” Collier Br. at 7. Her allegations fail to suggest that the EEOC entered into an agreement with the state agency to support the existence of a conspiracy, and she fails to allege any facts from which such conspiracy could be inferred. Therefore, because Ms. Collier's claims are “vague, conclusory, and unsupported by any facts or evidence, and thus are insufficient to state a claim” against the EEOC, McCrary v. Ohio Dep't of Human Servs., 229 F.3d 1153, 2000 WL 1140750, at **3 (6th Cir. Aug. 8, 2000), the district court properly dismissed Ms. Collier's section 1985 conspiracy claim against the EEOC under Rule 12(b)(6). In sum, there is no statute or constitutional provision that would entitle Ms. Collier to relief against the EEOC for any actions it took during its processing of her discrimination charge. Therefore, Ms. Collier's claims against the EEOC were properly dismissed for failure to state a claim upon which relief can be granted. II. THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT WAS APPROPRIATE BECAUSE THE DISTRICT COURT ALSO LACKED SUBJECT MATTER JURISDICTION Federal courts are courts of limited jurisdiction, deriving their powers from the authority of Congress. Lockerty v. Phillips, 319 U.S. 182, 187 (1943). Thus, in order for a district court to have the authority to hear a case, Congress must have vested the court with the appropriate jurisdiction. Id. Here, the district court determined that not only did the complaint allege claims for which no relief could be granted, but that the court also lacked subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). R.15 at 2-3. Under Rule 12(b)(1), the court is obligated to determine whether it has the authority to hear the plaintiff's claim, but the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). If Congress has not granted the district court jurisdiction over a particular claim, the district court lacks subject matter jurisdiction to entertain it. Here, there is no congressional grant of jurisdiction over Ms. Collier's claims against the EEOC; thus, she cannot meet her burden. Title VII provides district courts with three grants of jurisdiction. The court has jurisdiction over lawsuits brought by the EEOC, the Attorney General, and aggrieved private sector and state and local government employees. 42 U.S.C. 2000e-5(f)(3). It has authority to hear pattern and practice cases brought by the EEOC. 42 U.S.C. 2000e-6(b). And, the district court can hear federal employee actions against their employers. 42 U.S.C. 2000e-16. The EEOC is not Ms. Collier's employer and she does not dispute this fact, and none of the other provisions are applicable. Hence, none of these provisions confer jurisdiction over Ms. Collier's claims against the EEOC concerning the manner in which it processed her discrimination charge. Thus, Title VII provides no jurisdictional basis for complaints about the EEOC's processing of charges. Additionally, nothing in the cited constitutional amendments or 42 U.S.C. § 1985 confer the requisite jurisdiction. Accordingly, the district court lacked subject matter jurisdiction over Ms. Collier's claims. Although Ms. Collier asserts in her appellate brief that jurisdiction rested in the district court under 28 U.S.C. § 1343, it is clear that section 1343 does not provide an independent jurisdictional basis for this action. In order to establish jurisdiction under section 1343, a plaintiff must demonstrate that her claim arises under the Constitution or a federal statute. As explained above, Ms. Collier has failed to state a claim upon which relief can be granted under any of the statutes or constitutional provisions on which she relies. Therefore, subject matter jurisdiction under section 1343 is wanting. Finally, to the extent that Ms. Collier requests monetary damages from the EEOC, under the doctrine of sovereign immunity, the EEOC is immune from actions against it for improper handling of a discrimination charge. It is well-established that the United States and its agencies may not be sued without consent. United States v. Mitchell, 463 U.S. 206, 212 (1983). Moreover, “the United States has not consented to suit under the civil rights statutes." Unimex, Inc. v. Department of Housing and Urban Dev., 594 F.2d 1060, 1061 (5th Cir.1979). This waiver cannot be implied; it must be unequivocally expressed, United States v. Mitchell, 445 U.S. 535, 538 (1980), and the party attempting to sue the government bears the burden of identifying the statute that provides the waiver. James v. United States, 970 F.2d 750, 753 (10th Cir. 1992) (“party bringing suit against the United States bears the burden of proving that sovereign immunity has been waived”). Absent a waiver of sovereign immunity, the district court lacks subject matter jurisdiction over any attempted suit against the government. Mitchell, 463 U.S. at 212. Here, there is no basis to conclude that Congress has waived sovereign immunity for the EEOC, and Ms. Collier has failed to identify a statute that would provide the consent to be sued. In that sovereign immunity is a jurisdictional defense, Ms. Collier's claims against the EEOC are barred and were appropriately dismissed for lack of jurisdiction. CONCLUSION In light of established authority, it is beyond doubt that Ms. Collier can prove no set of facts in support of her claim which would entitle her to relief. Congress did not intend for a charging party who is dissatisfied with the EEOC's disposition of his or her discrimination charge to have a right of action against the Commission or its employees. Further, the district court lacks subject matter jurisdiction over such claims against EEOC employees. Therefore, the district court correctly dismissed Ms. Collier's complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6). Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel __________________________ PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7044 Washington, D.C. 20507 (202) 663-4731(w); 202-663-7090 (f) March 12, 2003 CERTIFICATE OF COMPLIANCE I certify that this brief, which is prepared in Times Roman 14 point, complies with the page limitation set forth in Fed.R.App.P. 32(a)(7)(A) because it does not exceed 30 pages. _____________________________ PAULA R. BRUNER CERTIFICATE OF SERVICE I, Paula R. Bruner, hereby certify that on this 12th day of March, 2003, two copies of the attached brief were sent first-class, postage prepaid, to the following pro se plaintiff and appellate counsel of record: Martha Collier 3201 Fountainbleau Hazel Crest, Illinois 60429 Mark A. Casciari, Esq. Seyfarth Shaw 55 East Monroe Street, Suite 4200 Chicago, Illinois 60603 Alison I. Abel, Esq. Illinois Department of Human Rights Office of the Attorney General of Civil Appeals 100 West Randolph Street, 13th Floor Chicago, Illinois 60601 __________________________ Paula R. Bruner, Esq. EEOC, Office of General Counsel 1801 L Street, N.W., Room 7044 Washington, D.C. 20507 (202) 663-4731 March 12, 2003 ADDENDUM 1 The district court inadvertently failed to docket the EEOC's motion to dismiss, even though the judge ruled on it. Thus, there is no record entry at this time. EEOC trial counsel has requested that the district court correct this error and it has agreed to do so. When completed, the district court will supplement the record before this Court. The EEOC's motion to dismiss is in the Addendum. 2 The case of Collier v. Bankers Life & Casualty Company also can be found at 2002 WL 31870546 (N.D.Ill. Dec. 20, 2002).