Harper v. Dorsett Bros. & EEOC (5th Cir.) Brief as appellee Feb. 24, 2005 No. 04-20783 ________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________________________________ DARRELL J. HARPER, Plaintiff-Appellant, v. DORSETT BROTHERS and U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendants-Appellees. ________________________________________________________ On Appeal from the United States District Court for the Southern District of Texas Honorable Lynn N. Hughes, U.S. District Judge ________________________________________________________ BRIEF OF APPELLEE THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ________________________________________________________ ERIC S. DREIBAND U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney Statement Regarding Oral Argument The Defendant-Appellee U.S. Equal Employment Opportunity Commission ("Commission") offers that oral argument is unnecessary in this case. This Court has clearly stated that the United States and its agencies cannot be sued unless its sovereign immunity has been waived by statute, and that Title VII does not confer jurisdiction upon the district courts to hear claims against the Commission of inadequate processing of discrimination complaints. Plaintiff-Appellant Darrell J. Harper ("Harper") has failed to identify, in his complaint, response to the Commission's motion to dismiss for lack of jurisdiction, or other pleadings, any statutory authority for the waiver of sovereign immunity as to his claim against the Commission, let alone any statutory or other authority for his claim against the Commission. Accordingly, the law of this circuit clearly bars Harper's claim against the Commission and he has not presented any argument to the contrary. For these reasons, the Commission does not believe that oral argument will aid this Court in resolving the matters raised in this appeal, and holding oral argument in this appeal would only serve to further waste the valuable resources of this Court and the federal government. Table of Contents Statement Regarding Oral Argument. . . . . . . . . . . . . . . .i Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issue Presented for Review. . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 I. Proceedings Below. . . . . . . . . . . . . . . . . . .2 II. Statement of Facts . . . . . . . . . . . . . . . . . .3 III. District Court Decision . . . . . . . . . . . . .5 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . .5 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 I. Standard of Review . . . . . . . . . . . . . . . . . .6 II. The District Court did not Abuse its Discretion in Dismissing Harper's Complaint for Violating the Injunction. . . .7 III. Dismissal of the Complaint was Appropriate as to the Claim Against the Commission, as the District Court Lacked Subject Matter Jurisdiction to Hear that Claim.. . . . . . . .9 IV. Dismissal of the Complaint was Appropriate as to the Claim Against the Commission, as Harper Failed to State a Claim upon which Relief can be Granted.. . . . . . . . . . 13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Certificate of Compliance Short Appendix Certificate of Service Table of Authorities Cases Page(s) Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997) . . . . . . . . . . . . . . . . 13 Belk v. Compaq Computer Corp., No. 02-21274, 2003 WL 21653130 (5th Cir. July 11, 2003) (unpublished decision) (attached) . . . . . . . . . . . 6, 7 Chambers v. NASCO, Inc., 501 U.S. 32 (1991). . . . . . . . . . . . . . . . . . . 7, 8 Dandridge v. Williams, 397 U.S. 471 (1970) . . . . . . . . . . . . . . . . . . . .9 De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) . . . . . . . . . . . . . . .7 Duzich v. Advantage Fin. Corp., 395 F.3d 527 (5th Cir. 2004). . . . . . . . . . . . . . . .6 Ex Parte Robinson, 86 U.S. (19 Wall.) 505 (1874) . . . . . . . . . . . . . . .7 Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994) . . . . . . . . . . . . . . . . . . . 10 Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979) . . . . . . . . . . . . . . . 13 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . . . . . 13 Gibson v. Mo. Pac. R.R., 579 F.2d 890 (5th Cir. 1978). . . . . . . . . . . 12, 13, 14 Hager v. Nationsbank N.A., 167 F.3d 245 (5th Cir. 1999). . . . . . . . . . . . . . .6-7 Harper v. City View & Capital One Auto Fin., Nos. H-02-4126, H-02-4612, Final Order of Dismissal and Permanent Injunction (S.D. Tex. Dec. 23, 2002) (attached) .4 Harper v. City View & Capital One Auto Fin., Nos. H-02-4126, H-02-4612, Opinion on Dismissal (S.D. Tex. Dec. 23, 2002) (attached). . . . . 4, 8 Harper v. Hughes, et al., No. H-02-3152, Opinion on Dismissal (S.D. Tex. July 22, 2002) (attached) . . . . . . . . . . . 8 Harper v. Hughes, et al., No. H-02-3152, Order on Clarification (S.D. Tex. Sept. 6, 2002) (attached) . . . . . . . . . . .8 James v. United States, 970 F.2d 750 (10th Cir. 1992) . . . . . . . . . . . . . . 11 Jeanmarie v. United States, 242 F.3d 600 (5th Cir. 2001) . . . . . . . . . . . . . . 10 Link v. Wabash R.R. Co., 370 U.S. 626 (1962) . . . . . . . . . . . . . . . . . . . .8 Lockerty v. Phillips, 319 U.S. 182 (1943) . . . . . . . . . . . . . . . . . 10, 11 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984). . . . . . . . . . . . . 13, 14 McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936) . . . . . . . . . . . . . . . . . . . 11 Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996). . . . . . . . . . . . . . . 11 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . . . . 12, 13, 14 Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) . . . . . . . . . . . . . . . . . . 7, 8 Scheerer v. Rose State Coll., 950 F.2d 661 (10th Cir. 1991) . . . . . . . . . . . . . . 13 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997). . . . . . . . . . . . . . . 13 Spivey v. Robertson, 197 F.3d 772 (5th Cir. 1999). . . . . . . . . . . . . . . .7 United States v. Am. Ry. Express Co., 265 U.S. 425 (1924) . . . . . . . . . . . . . . . . . . . .9 United States v. Mitchell, 445 U.S. 535 (1980) . . . . . . . . . . . . . . . . . . . 10 United States v. Testan, 424 U.S. 392 (1975) . . . . . . . . . . . . . . . . . . . 10 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983). . . . . . . . . . . . . . . 13 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-5 (attached) . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000e-5(f)(3) (attached) . . . . . . . . . . . . . 11 42 U.S.C. § 2000e-6(b) (attached). . . . . . . . . . . . . . . 12 42 U.S.C. § 2000e-16 (attached). . . . . . . . . . . . . . . . 12 Rules Fed. R. Civ. P. 12(b)(1) (attached). . . . . . . . . . . . . . 11 Fed. R. Civ. P. 12(b)(6) (attached). . . . . . . . . . . . . . 13 No. 04-20783 ________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________________________________ DARRELL J. HARPER, Plaintiff-Appellant, v. DORSETT BROTHERS and U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendants-Appellees. ________________________________________________________ On Appeal from the United States District Court for the Southern District of Texas Honorable Lynn N. Hughes, U.S. District Judge ________________________________________________________ BRIEF OF APPELLEE THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ________________________________________________________ Statement of Jurisdiction While the Commission believes (for the reasons offered in the Argument section, below) that the district court lacked subject matter jurisdiction over the Commission in this action, this Court's jurisdiction over this appeal is proper. The United States Court of Appeals for the Fifth Circuit has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which provides the Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of United States District Courts. The district court entered final judgment in this case on September 13, 2004. Harper timely filed his notice of appeal in the district court on September 17, 2004. Statement of the Issue Presented for Review Whether the district court correctly dismissed with prejudice Harper's claims against the Commission. Statement of the Case I. Proceedings Below On May 24, 2004, Darrell J. Harper ("Harper") filed a complaint against Defendant-Appellee Dorsett Brothers (Dorsett Bros.) and the Commission, in the United States District Court for the Southern District of Texas. District Court Docket Number ("R.") 1. On July 1, 2004, the Commission filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. R.6. On August 25, 2004, pursuant to an order the Hon. Lynn Hughes had entered in a prior suit brought by Harper, the case was transferred to Judge Hughes. R.17. On September 13, 2004, Judge Hughes dismissed the suit, R.19, and this appeal followed. II. Statement of Facts In his complaint, Harper alleged that Defendant-Appellee Dorsett Brothers (Dorsett Bros.) and the Commission "continue to condoned [sic] racial profiling in the State of Texas Workplaces, without proper jurisdictional [sic]." R.1 at 1-2. Harper attached to his complaint two charges he had filed previously with the Commission—one against Dorsett Bros. and one against the City of Houston. R.1. Harper sought $4,000,000.00 in damages. R.1 at 2. The Commission filed a motion to dismiss the complaint with prejudice. R.5, R.6. In its motion, the Commission noted that Harper appeared to allege that the Commission had "condoned racial profiling" in Texas workplaces, and that this allegation apparently grew out of Harper's dissatisfaction with the results of the Commission's findings or investigation of his prior race discrimination charges. R.6 at 2. The Commission argued that dismissal with prejudice was appropriate because the district court lacked subject matter jurisdiction over Harper's claim against the Commission and because Harper failed to state a claim against the Commission for which relief could be granted.<1> R.6 at 1. In his objection to the Commission's motion to dismiss, Harper expanded on his allegation against the Commission, stating that the Commission failed to follow up on any of his complaints and therefore the Commission "may indeed condone[] racial profiling" in Texas workplaces. R.7. at 1 In an apparent reference to his dissatisfaction with the Commission's prior processing of his charge against Dorsett Bros., Harper stated that the Commission "failed to recognize" that according to the Texas Workforce Commission, Dorsett Bros. "did not kept [sic] records of plaintiff's work performance and notice of job being in jeopardy." Id. at 2. Due to Harper's pattern of filing frivolous and vexatious lawsuits, Judge Hughes had previously ordered that all of Harper's future cases be assigned to the judge; that Harper could not file suit in the U.S. District Court for the Southern District of Texas without the judge's written permission; and that Harper could not file suit in that district court "without paying the filing fees for all his earlier cases." Harper v. City View & Capital One Auto Fin., Nos. H-02-4126, H-02- 4612, Final Order of Dismissal and Permanent Injunction, at 1 (S.D. Tex. Dec. 23, 2002) (attached in Short Appendix ("S.A.") at 1). See also Harper v. City View & Capital One Auto Fin., Nos. H-02-4126, H-02-4612, Opinion on Dismissal (S.D. Tex. Dec. 23, 2002) (S.A. at 2-3). III. District Court Decision On September 13, 2004, in a one-line decision, Judge Hughes issued "Final Dismissal" of the instant case (and two others filed by Harper) because Harper filed the action in violation of the December 23, 2002 injunction. R.19. This appeal followed. Summary of Argument The district court's dismissal of Harper's action because of his violation of its prior injunction was appropriate and did not constitute an abuse of the district court's inherent discretionary power to sanction a litigant like Harper who routinely abuses the judicial process. Moreover, dismissal was also proper as to Harper's claims against the Commission for the reasons stated in its motion to dismiss—lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. It is apparent from Harper's complaint and subsequent filings with the district court and this Court that his claim against the Commission is that the Commission failed properly to process his prior charges of race discrimination. However, Congress has not waived the sovereign immunity enjoyed by the United States from such claims, leaving the district court without subject matter jurisdiction to adjudicate Harper's supposed claim. Additionally, there is no statutory or common law authority upon which Harper's claim against the Commission can be based. To the extent Harper may be relying upon Title VII to sue the Commission for improperly processing his prior charges, this Court has clearly and repeatedly recognized that Title VII does not give rise to a claim by a charging party to challenge or contest the Commission's handling or disposition of his or her charge, and that dismissal is proper in such cases. Therefore, the district court's dismissal of Harper's claim against the Commission should be affirmed on the basis of his violation of the injunction, for lack of subject matter jurisdiction, and/or for failure to state a claim upon which relief can be granted. Argument I. Standard of Review This Court reviews a district court's dismissal with prejudice for failure to follow an order of the Court under an abuse of discretion standard. Belk v. Compaq Computer Corp., No. 02-21274 (5th Cir. July 11, 2003), available at 2003 WL 21653130 (unpublished decision) (attached at S.A. at 7). However, to the extent that this Court examines the Commission's argument that dismissal was proper for lack of subject matter jurisdiction and/or failure to state a claim upon which relief can be granted, these questions are examined de novo on appeal. See Duzich v. Advantage Fin. Corp., 395 F.3d 527, 529 (5th Cir. 2004) (review of dismissal for failure to state a claim is de novo); Hager v. Nationsbank N.A., 167 F.3d 245, 247 (5th Cir. 1999) ("We review dismissals for lack of subject matter jurisdiction . . . de novo."). In determining whether a plaintiff has failed to state a claim upon which relief can be granted, this Court's examination is limited to the allegations contained in the pleadings, accepting the plaintiff's allegations as true. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). II. The District Court did not Abuse its Discretion in Dismissing Harper's Complaint for Violating the Injunction. District courts have the inherent power to "punish for contempts." Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quoting Ex Parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874)). While a court's inherent powers must be "exercised with restraint and discretion," "[a] primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process." Id. at 44-45 (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980)). See also Belk, 2003 WL 21653130, at *1 (affirming district court's dismissal of action by pro se litigant, whose "essentially conclusional accusations" included charges against the district court and were "vituperative," "unfounded," and "approach[ed]—and likely cross[ed]—the line separating vigorous advocacy and sanctionable conduct"); De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (recognizing the inherent power of district courts to enjoin litigants with "abusive and lengthy" litigation histories). "[O]utright dismissal of a lawsuit . . . is a particularly severe sanction, yet it is within the court's discretion." Chambers, 501 U.S. at 45 (citing Roadway Express, 447 U.S. at 765). See also Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962) (sanction of dismissal with prejudice is within the authority of the district court). In Harper v. City View & Capital One, the district court found that Harper had engaged in ongoing abuse of the judicial process, and enjoined him from future litigation unless certain conditions were first met. S.A. at 2-3 (Harper v. City View & Capital One, Opinion on Dismissal). See also S.A. at 3, 4 (Harper v. Hughes, et al., No. H-02-3152, Opinion on Dismissal (S.D. Tex. July 22, 2002); Harper v. Hughes, et al., No. H-02-3152, Order on Clarification (S.D. Tex. Sept. 6, 2002)) (identifying prior abusive conduct by Harper and clarifying order against him). In filing the instant frivolous action, Harper did not meet the injunction's necessary conditions precedent to his filing suit in the district court, so the district court dismissed the case with prejudice. See R.19 (dismissal with prejudice). Accordingly, the record on appeal supports the conclusion that the district court did not abuse its discretion when it dismissed the instant case with prejudice on the ground of Harper's failure to abide by the injunction. III. Dismissal of the Complaint was Appropriate as to the Claim Against the Commission, as the District Court Lacked Subject Matter Jurisdiction to Hear that Claim. While not clearly stated in his complaint or other pleadings, it appears that Harper's claim against the Commission is that he is dissatisfied with the Commission's processing of his previous charges of discrimination. See Brief for Appellant at 8 ("Brief will show that federal government did not perform their job duties as required by law"); R.1 (complaint with Harper's prior discrimination charges attached thereto); R.7 at 1-2 ("Defendant (s) has failed to follow up on any plaintiff's complaint"; the Commission "failed to recognize" that Dorsett Bros. "did not kept [sic] records of plaintiff's work performance and notice of job being in jeopardy"; "Defendant (s) acknowledge that plaintiff submitted two (2) charge [sic] filed with Defendant, E.E.O.C."). The district court's lack of subject matter jurisdiction over Harper's improper charge processing claim against the Commission also warranted dismissal of his claim against the Commission.<2> It is well established that the United States cannot be sued unless its sovereign immunity has been waived by statute. United States v. Mitchell, 445 U.S. 535, 538 (1980); Jeanmarie v. United States, 242 F.3d 600, 602 (5th Cir. 2001). The doctrine of sovereign immunity is not limited to suits in which the United States is the named defendant; it applies with equal force to suits in which a federal agency is named as the defendant. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Significantly, a waiver of sovereign immunity cannot be implied and must be unequivocally expressed by statute. Mitchell, 445 U.S. at 538. A statute that authorizes a waiver of sovereign immunity specifies the particular terms under which the United States consents to being sued. United States v. Testan, 424 U.S. 392, 399 (1975). Thus, for a plaintiff to proceed against the United States, there must be a statute that waives sovereign immunity for the type of claim asserted and which confers jurisdiction on the district court to adjudicate the claim. There is, however, no such statutory provision which waives the Commission's sovereign immunity for the type of suit brought against it by Harper. 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. Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, district courts are obligated to determine whether they have the authority to hear a plaintiff's claim, but the plaintiff has the burden of proving jurisdiction in order to survive a motion to dismiss. Madison- Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). See also James v. United States, 970 F.2d 750, 753 (10th Cir. 1992) (noting that the "party bringing suit against the United States bears the burden of proving that sovereign immunity has been waived") (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 188 (1936)); Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction defense). Harper did not even attempt to respond to the Commission's motion by showing that the district court had subject matter jurisdiction to hear his claim, and for this reason alone dismissal was proper. Nor could he have so proven, as it is well settled that district courts lack subject matter jurisdiction to hear claims of improper charge processing leveled against the Commission. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., provides district courts with three grants of jurisdiction. District courts have jurisdiction over lawsuits brought by the Commission, the Attorney General, and aggrieved private sector, state, and local government employees or applicants for employment. 42 U.S.C. § 2000e-5(f)(3). District courts also have jurisdiction over pattern and practice cases brought by the Commission or the Attorney General. 42 U.S.C. § 2000e-6(b). Finally, district courts can hear federal employee actions against their employers. 42 U.S.C. § 2000e-16. It is uncontested that Harper is not an employee of, nor applicant for employment with, the Commission, and none of the other provisions are applicable. Hence, none of these provisions confer jurisdiction over Harper's claim against the Commission concerning the manner in which it processed his discrimination charges. Moreover, this Court has held that Title VII does not provide district courts with jurisdiction to hear a claim from a charging party against the Commission alleging improper processing of his or her discrimination charge. In Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002), this Court addressed a charging party's improper charge processing claims against the Commission, and held that Title VII provided no jurisdictional support for those claims, as Title VII "does not confer upon a charging party a right of action against the EEOC." 301 F.3d at 232 (citing Gibson v. Mo. Pac. R.R., 579 F.2d 890, 891 (5th Cir. 1978)). This Court concluded that "[t]herefore it was proper for the district court to dismiss Newsome's Title VII claims." Id. The district court lacked subject matter jurisdiction to hear Harper's claim challenging the Commission's processing of his prior charges, and therefore dismissal was not only proper, but necessary. IV. Dismissal of the Complaint was Appropriate as to the Claim Against the Commission, as Harper Failed to State a Claim upon which Relief can be Granted. Harper's failure to state in any of his pleadings a claim upon which relief can be granted also supports the district court's dismissal of his claim against the Commission. See Fed. R. Civ. P. 12(b)(6) (defense of failure to state a claim upon which relief can be granted). It is well settled in this Court that Title VII does not provide a charging party with a cause of action against the Commission for alleged inadequacies in the Commission's investigation or resolution of a charge of discrimination. See Newsome, 301 F.3d at 232 (Title VII "does not confer upon a charging party a right of action against the EEOC"); Gibson, 579 F.2d at 891 ("Title VII . . . confers no right of action against the enforcement agency"). The other Courts of Appeals to have addressed this issue have similarly held that no such cause of action exists against the Commission. Accord Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir. 1997); Scheerer v. Rose State Coll., 950 F.2d 661, 663 (10th Cir. 1991); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983); Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979). Instead, Congress has provided a remedy for a plaintiff dissatisfied with the Commission's handling of his or her charge, pursuant to 42 U.S.C. § 2000e-5. That remedy is to "commence suit in the district court against the party allegedly engaged in discrimination," where a charging party is "entitled to de novo review of [his or her] claims." McCottrell, 726 F.2d at 352 (emphasis in original). Since no cause of action exists under Title VII for Harper's claim against the Commission, he has failed to state a claim upon which relief can be granted and dismissal of his claim was the district court's only appropriate course of action. See Newsome, 301 F.3d at 232 (dismissal the appropriate remedy); Gibson, 579 F.2d at 891 (same). Conclusion For the foregoing reasons, the Commission respectfully requests that this Court affirm the district court's dismissal of Harper's claims against the Commission. Respectfully submitted, ERIC S. DREIBAND __________________________ General Counsel JAMES M. TUCKER CAROLYN L. WHEELER Attorney Acting Associate General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Office of General Counsel Assistant General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Service I hereby certify that two physical copies and one electronic copy (on floppy disc) of the foregoing brief were sent this 24th day of February, 2005, by FedEx Next Day Air delivery, postage prepaid, to the Pro Se Appellant and the following counsel of record for Appellee Dorsett Brothers Concrete Supply Inc., at the addresses of record listed below: Darrell J. Harper 7923 Dockal Houston, TX 77028 Phillip R. Livingston Livingston & Livingston 1800 St. James Place, Suite 450 Houston, TX 77386 __________________________ JAMES M. TUCKER Attorney U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance I hereby certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 3,051 words, from the Statement of Interest through the Conclusion, as determined by the Word Perfect 9.0 word-counting program, and was prepared using the WordPerfect 9.0 word-processing system in 14-point proportionally spaced type for text and 12-point type for footnotes. __________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Short Appendix Document Short Appendix Page(s) 1. Harper v. City View & Capital One Auto Fin., Nos. H-02-4126, H-02-4612, Final Order of Dismissal and Permanent Injunction (S.D. Tex. Dec. 23, 2002). . . . . . .1 2. Harper v. City View & Capital One Auto Fin., Nos. H-02-4126, H-02-4612, Opinion on Dismissal (S.D. Tex. Dec. 23, 2002) . . . . . . . . . . .2-3 3. Harper v. Hughes, et al., No. H-02-3152, Opinion on Dismissal (S.D. Tex. July 22, 2002)4 4. Harper v. Hughes, et al., No. H-02-3152, Order on Clarification (S.D. Tex. Sept. 6, 2002)5 5. Belk v. Compaq Computer Corp., No. 02-21274 (5th Cir. July 11, 2003), available at 2003 WL 21653130 (unpublished decision) .6 6. 42 U.S.C. § 2000e-5 . . . . . . . . . . . . . . . . . . 7-11 7. 42 U.S.C. § 2000e-6 . . . . . . . . . . . . . . . . . .12-13 8. 42 U.S.C. § 2000e-16. . . . . . . . . . . . . . . . . .14-16 9. Fed. R. Civ. P. 12(b)(1), (6) . . . . . . . . . . . . .17-19 *************************************************************************** <> <1> The Commission also argued that dismissal was appropriate because Harper failed to effect proper service on the United States as defendant. R.6. at 1. The Commission does not pursue that argument on appeal. <2> An appellee may argue in its brief that the district court’s order should be affirmed on a ground different from that relied on by the district court as long as the appellee is not seeking thereby to expand its rights or diminish the appellant’s rights under the judgment. Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970) (“The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court.”); United States v. Am. Ry. Express Co., 265 U.S. 425, 435 (1924) (“[I]t is . . . settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.”).