06-1980-cv __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT __________________________________________ Tonika Haynes, Plaintiff-Appellant, v. Quality Markets, (The Penn Traffic Company), United Food and Commercial Workers International Union (UFCW), U.S. Equal Employment Opportunity Commission, and U.S. National Labor Relations Board, Defendants-Appellees. __________________________________________________________________ On Appeal from the United States District Court for the Western District of New York, Hon. Richard J. Arcara, District Judge _________________________________________________________________ BRIEF OF APPELLEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________________ RONALD S. COOPER AVIS L. KIM General Counsel Attorney EQUAL EMPLOYMENT VINCENT J. BLACKWOOD OPPORTUNITY COMMISSION Acting Associate General Counsel 1801 L Street, N.W. Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4736 Assistant General Counsel davis.kim@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. Background. . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. District Court Proceedings. . . . . . . . . . . . . . . . . . 5 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. Standard of Review. . . . . . . . . . . . . . . . . . . . . 7 II. The District Court Properly Dismissed Haynes' Claim Against the EEOC because the Court Lacked Jurisdiction Over Haynes' Claim. . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The District Court Lacked an Independent Basis for Subject Matter Jurisdiction Over Haynes' Claim Against the EEOC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Congress Has Not Waived the EEOC's Sovereign Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 III. The District Court Properly Dismissed Haynes' Claim Against the EEOC for its Handling of Her Discrimination Charge for Failure to State a Claim Upon Which Relief May be Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 TABLE OF CONTENTS CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE ANTI-VIRUS CERTIFICATION FORM CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Adeleke v. United States, 355 F.3d 144 (2d Cir. 2004). . . . . . . . . . . . 11 Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997). . . . . . . . . . . . 12 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). . . . . . . . . . . . . . 14 Clinton County Comm'rs v. EPA, 116 F.3d 1018 (3d Cir. 1997). . . . . . . . . . . . 8 Early v. Banker Life & Cas. Co., 959 F.2d 75 (7th Cir. 1992). . . . . . . . . . . . 11 Ellis v. Cassidy, 625 F.2d 227 (9th Cir.1980). . . . . . . . . . . . 9 FDIC v. Meyer, 510 U.S. 471 (1994). . . . . . . . . . . . . . . 11 Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979). . . . . . . . . 12, 14 Gagliardi v. Vill. of Pawling, 18 F.3d 188 (2d Cir. 1994). . . . . . . . . 10, 15 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . 12 Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890 (5th Cir. 1978). . . . . . . . . 12-13 Giles v. EEOC, 520 F. Supp. 1198 (E.D. Mo. 1981). . . . . . . . . 10 Hamm v. United States, 483 F.3d 135 (2d Cir. 2007). . . . . . . . . . . . 11 Kern v. City of Rochester, 93 F.3d 38 (2d Cir. 1996). . . . . . . . . . . . 13 Kohl Indus. Park Co. v. County of Rockland, 710 F.2d 895 (2d Cir. 1983). . . . . . . . . . . . 10 Lockerty v. Phillips, 319 U.S. 182 (1943). . . . . . . . . . . . . . . 8 Marakova v. United States, 201 F.3d 110 (2d Cir. 2000). . . . . . . . . 7, 11 McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007). . . . . . . . . . . . 7 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984). . . . . . . . . 12, 13 Ostrer v. Aronwald, 567 F.2d 551 (2d Cir. 1977). . . . . . . . . . . . 14 Presidential Gardens Assocs. v. United States, 175 F.3d 132 (2d Cir. 1999). . . . . . . . . . . . 8 Sheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991). . . . . . . . . 12 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997). . . . . . . . . . . 12 Tancredi v. Metro. Life Ins. Co., 378 F.3d 220 (2d Cir. 2004). . . . . . . . . . . . 14 Trackwell v. U.S. Gov't, 472 F.3d 1242 (10th Cir. 2007). . . . . . . . . . 11 United States v. King, 395 U.S. 1 (1969). . . . . . . . . . . . . . . . . 11 United States v. Mitchell, 445 U.S. 535 (1980). . . . . . . . . . . . 10, 11 United States v. Nordic Vill., Inc., 503 U.S. 30 (1992). . . . . . . . . . . . . . . 11 United States v. Sherwood, 312 U.S. 584 (1941). . . . . . . . . . . . . . . 10 United States v. Timmons, 672 F.2d 1373 (11th Cir. 1982). . . . . . . . . 11 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983). . . . . . . . . 12, 13 Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005). . . . . . . . . . . . 7 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . 2, 6, 8-14 42 U.S.C. § 1983. . . . . . . . 2, 5, 6, 8, 10-12, 14 42 U.S.C. § 1985. . . . . . 5, 6, 8, 10-12, 14, 15 42 U.S.C. § 1986. . . . . . 2, 5, 6, 8, 10-12, 15 42 U.S.C. § 2000e et seq.. . . . . . . . . passim 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . 13 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . 9 42 U.S.C. § 2000e-6(b). . . . . . . . . . . . . . . 9 42 U.S.C. § 2000e-16. . . . . . . . . . . . . . . 9 Federal Rules of Civil Procedure and Other Authority Fed. R. Civ. P. 12(b)(1). . . . . . . . . 4, 7, 8 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . 4, 7, 12 118 Cong. Rec. 7,168 (1972). . . . . . . . . . . . 13 STATEMENT OF JURISDICTION The district court lacked subject matter jurisdiction over Plaintiff-Appellant Tonika Haynes' claims against the Equal Employment Opportunity Commission ("EEOC") because there is no statutory basis for an action against the EEOC for its handling of a charge of employment discrimination. The district court dismissed Haynes' claim against the EEOC, and final judgment was entered against her on March 31, 2006. Record ("R.") 75. Haynes filed a timely notice of appeal on April 21, 2006. R.76. This court has appellate jurisdiction under 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, including the United States District Court for the Western District of New York. STATEMENT REGARDING ORAL ARGUMENT The EEOC does not request oral argument. We believe oral argument would not significantly aid the decisional process in the instant case because the issues are not complex and are adequately presented in this brief. STATEMENT OF THE ISSUE Whether Haynes' claim against the EEOC for its handling of her discrimination charge against a private employer was properly dismissed by the district court for lack of jurisdiction and for failure to state a claim against the EEOC upon which relief may be granted. STATEMENT OF THE CASE Haynes, proceeding pro se, filed the complaint in this matter on April 1, 2002, against the EEOC, Quality Markets (The Penn Traffic Company) ("Penn Traffic"), the United Food and Commercial Workers International Union ("UFCW"), and the National Labor Relations Board ("NLRB"). R.1. The complaint alleged that Penn Traffic subjected Haynes to retaliatory termination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. R.1 ¶¶ 7-14, 48. Haynes further alleged that the UFCW breached its duty of fair representation in its handling of her grievances. Id. ¶ 23. Invoking jurisdiction under 28 U.S.C. § 1343, Haynes alleged additional claims arising under the U.S. Constitution and 42 U.S.C. §§ 1983 and 1986 against the EEOC and the NLRB for failing to take action on complaints she filed against Penn Traffic and the UFCW. Id. ¶¶ 27-40, 48-53. On October 7, 2002, the NLRB moved to dismiss the claims against it. R.5. On October 9, 2002, the case was referred to a Magistrate Judge. R.8. On November 15, 2002, the EEOC moved to dismiss the claims against it. R.12. On September 23, 2003, the Magistrate Judge issued a Report and Recommendation, which recommended that the district court grant the EEOC's and the NLRB's motions to dismiss and deny Haynes' motion to amend her complaint to include individual employees of the EEOC and NLRB as defendants. R.31 ("R&R"). On March 25, 2004, the district court granted the EEOC's and the NLRB's motions to dismiss for the reasons set forth in the Magistrate Judge's Report and Recommendation. R.37. The district court granted Penn Traffic's motion for judgment on the pleadings and UFCW's motion for summary judgment in March 2006. R.75. Final judgment was entered on March 31, 2006. Id. Haynes filed a timely notice of appeal on April 21, 2006. R.76. STATEMENT OF FACTS I. Background According to the complaint, Tonika Haynes began her employment as a cashier for Penn Traffic in June 2000. R.1 ¶ 7. In September 2000, she was verbally warned for having an alleged drawer shortage of $50.00. Id. ¶ 8. On March 3, 2001, Haynes was written up and suspended for one day based upon an alleged drawer shortage of $54.21. Id. ¶ 9. On March 27, 2001, Haynes was again suspended for allegedly "stealing" one dollar's worth of spaghetti. Id. ¶ 10. Penn Traffic terminated Haynes on or about April 6, 2001. Id. ¶ 11. On April 6, 2001, Haynes filed a grievance regarding her termination with her union, the UFCW. Id. ¶ 20. Haynes was dissatisfied with the UFCW's handling of her grievance, and she proceeded to file charges with the EEOC and the NLRB. Id. ¶ 24. Haynes alleged that, when she first attempted to file a charge of retaliatory termination against Penn Traffic with the EEOC's Buffalo Local Office, she was informed that her submission was deficient. Id. ¶¶ 48-49. Haynes further alleged that she responded to the EEOC by submitting a written document outlining the factual and legal grounds for her allegations. Id. ¶ 50. The EEOC then docketed her charge. Id. ¶ 51. The EEOC subsequently dismissed Haynes' charge and issued her a right to sue letter on or about January 3, 2002. Id. ¶ 52. Haynes filed the complaint in the instant case on April 1, 2002. Id. The EEOC moved to dismiss, arguing that the complaint against the EEOC should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction or, alternatively, under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. R.12. Haynes responded, arguing that the EEOC's motion should be denied and alleging, for the first time, that the EEOC took part in a conspiracy (along with the other named defendants) to violate her civil rights. R.14. The EEOC replied, noting that Haynes failed to directly respond to the EEOC's arguments in its motion to dismiss and reiterating that Haynes' claim should be dismissed for lack of subject matter jurisdiction and for failure to state a claim. R.16. II. District Court Proceedings On September 23, 2003, the Magistrate Judge issued a Report and Recommendation, concluding that the court lacked jurisdiction over Haynes' Title VII claim against the EEOC because "the jurisdictional reach of that statute does not extend to claims against [the] agency for its actions in carrying out any enforcement responsibilities." R&R at 4. The Magistrate Judge stated that "the actions of the federal government and its agencies and officials are beyond the purview of § 1983, which applies only to state actors acting under color of state law." Id. The Magistrate Judge further found that the "United States and its agencies have not consented to be sued under § 1985" and that the "same applies to claims brought under § 1986." Id. Thus, "the doctrine of sovereign immunity bars the various civil rights claims asserted by [Haynes] against [the EEOC] in this case." Id. at 5. The Magistrate Judge also determined that Haynes failed to state a claim against the EEOC, noting that the complaint did not "articulate any basis to support a claim of conspiracy." Id. at 5. Finally, the Magistrate Judge denied Haynes' oral motion to amend her complaint to name individual employees of the EEOC as defendants in the case because she failed to articulate any basis upon which she could state a claim against the individual officials. Id. On March 25, 2004, the district court adopted the Magistrate Judge's Report and Recommendation, granting the EEOC's motion to dismiss. R.37. Final judgment was entered on March 31, 2006. Id. SUMMARY OF ARGUMENT This Court should affirm the district court's dismissal of Haynes' claim against the EEOC for lack of jurisdiction because no federal statute confers subject matter jurisdiction on the district courts to entertain an action against the EEOC for dissatisfaction with the EEOC's handling of a discrimination charge. Furthermore, Haynes' claim is barred by the doctrine of sovereign immunity because the United States government has not consented to be sued for this type of claim. The district court's dismissal of Haynes' claim against the EEOC for failure to state a claim upon which relief can be granted should also be affirmed because Congress has not provided for a cause of action against the EEOC by an individual who is dissatisfied with the EEOC's processing and disposition of her discrimination charge. Under Title VII, the recourse for an individual who is unhappy with the EEOC's handling of a discrimination charge is to file a lawsuit against her employer, which Haynes has done. 28 U.S.C. § 1343 and 42 U.S.C. § 1983 are similarly unavailing to Haynes because neither provision provides her with a cause of action against the EEOC. Moreover, the district court properly dismissed Haynes' claim against the EEOC under 42 U.S.C. §§ 1985 and 1986 for failure to state a claim because Haynes failed to allege sufficient facts to support her allegation that the EEOC participated in a conspiracy with the other named defendants to violate her civil rights. ARGUMENT I. Standard of Review The district court ruled as a matter of law that the plaintiff did not state a claim upon which relief can be granted against the Commission. On appeal from a district court's dismissal under Fed. R. Civ. P. 12(b)(1), this Court reviews "factual findings for clear error and legal conclusions de novo." Marakova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted). This Court reviews a dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted de novo. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). II. The District Court Properly Dismissed Haynes' Claim Against the EEOC because the Court Lacked Jurisdiction Over Haynes' Claim This Court should affirm the district court's dismissal of Haynes' claim against the EEOC under Fed. R. Civ. P. 12(b)(1) because the district court lacked jurisdiction over the claim. In order for a plaintiff to proceed in an action against the United States, she must identify a statutory provision that provides an independent basis for subject matter jurisdiction as well as a waiver of sovereign immunity. Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir. 1999); Clinton County Comm'rs v. EPA, 116 F.3d 1018, 1021 (3d Cir. 1997). No statute vests federal courts with subject matter jurisdiction over Haynes' claim against the EEOC for alleged improper processing or disposition of a discrimination charge. Furthermore, Congress has not waived sovereign immunity with respect to such a claim. A. The District Court Lacked an Independent Basis for Subject Matter Jurisdiction Over Haynes' Claim Against the EEOC The 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 authority to hear a case, Congress must have vested the district court with the appropriate jurisdiction. Id. In her brief, Haynes argues that jurisdiction over the instant action exists under Title VII, 28 U.S.C. § 1343, and 42 U.S.C. §§ 1983, 1985, and 1986. R.1 ¶¶ 44-45. However, none of these statutory provisions provides a jurisdictional basis for her claim against the EEOC. Title VII provides district courts with three grants of jurisdiction, but it does not provide jurisdiction over a claim alleging that the EEOC improperly processed a charge of discrimination. See 42 U.S.C. § 2000e-5(f)(3) (providing jurisdiction over lawsuits brought by the EEOC or a charging party against a private sector employer and by the Attorney General or a charging party against a local or state governmental employer); 42 U.S.C. § 2000e-6(b) (providing jurisdiction over "pattern and practice" suits by the EEOC or the Attorney General); and 42 U.S.C. § 2000e-16 (providing jurisdiction over suits brought by federal employees against their federal employers). None of the three provisions confer jurisdiction over Haynes' claims against the EEOC concerning its handling of her discrimination charge since she was neither an employee nor an applicant for employment with the EEOC, and the EEOC is not itself charged with employment discrimination. Section 1343 of the Judicial Code, 28 U.S.C. § 1343, applies to suits alleging violations of federal civil rights. However, § 1343 "does not create an independent basis for federal jurisdiction but only serves to confer jurisdiction where a federal cause of action is provided by one of the substantive provisions of the Civil Rights Acts." Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir.1980). The jurisdictional requirements of § 1343 are not satisfied when the claim alleged is "wholly insubstantial" or the complaint fails to allege sufficient facts to state a cause of action for deprivation of civil rights. Kohl Indus. Park Co. v. County of Rockland, 710 F.2d 895, 899 (2d Cir. 1983) (citations omitted). For reasons discussed in Section III, Haynes does not state a valid claim against the EEOC. Therefore, § 1343 cannot provide a jurisdictional basis for Haynes' claim because she does not and cannot contend that the EEOC deprived her of cognizable civil rights. 42 U.S.C. §§ 1983, 1985, and 1986 are not, by themselves, jurisdictional provisions. See Giles v. EEOC, 520 F. Supp. 1198, 1199 (E.D. Mo. 1981) (noting that 42 U.S.C. §§ 1983 and 1985 do not grant jurisdiction and "merely provide a remedy in cases in which jurisdiction is present pursuant to 28 U.S.C. § 1343"); cf. Gagliardi v. Vill. of Pawling, 18 F.3d 188, 194 (2d Cir. 1994) (§ 1986 action may not proceed absent valid § 1985 claim). As discussed in Section III, none of these provisions offers redress against the EEOC for a claim of improper charge processing. B. Congress Has Not Waived the EEOC's Sovereign Immunity Jurisdiction over this claim is also lacking because the United States is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Mitchell, 445 U.S. at 538 (quoting United States v. King, 395 U.S. 1, 4 (1969)). Moreover, any waiver must be strictly construed in favor of the government and "not enlarge[d] . . . beyond what the language requires." United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992) (citations omitted); see also Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004). Therefore, absent an express waiver, sovereign immunity shields the agencies of the United States from suit. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Since the doctrine of sovereign immunity is jurisdictional in nature, "plaintiff bears the burden of establishing that her claims fall within an applicable waiver." Makarova, 201 F.3d at 113; see also Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007). Haynes cannot meet her burden because Title VII, 28 U.S.C. § 1343, and 42 U.S.C. §§ 1983, 1985, and 1986 do not contain an "unequivocal" waiver of the EEOC's sovereign immunity with respect to a claim for damages arising from the EEOC's handling of a discrimination charge. See Early v. Banker Life & Cas. Co., 959 F.2d 75, 78 (7th Cir. 1992) (no waiver of sovereign immunity to a damages suit against the EEOC regarding charge processing); Trackwell v. U.S. Gov't, 472 F.3d 1242, 1244 (10th Cir. 2007) (28 U.S.C. § 1343 cannot be construed as a waiver of the federal government's sovereign immunity); United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir. 1982) (stating that "the United States has not waived its immunity to suit under the provisions of the civil rights statutes"). Therefore, the district court lacked subject matter jurisdiction over Haynes' claim against the EEOC. III. The District Court Properly Dismissed Haynes' Claim Against the EEOC for its Handling of Her Discrimination Charge for Failure to State a Claim Upon Which Relief May be Granted This Court should also affirm the district court's dismissal of Haynes' claim against the EEOC for its handling and disposition of her discrimination charge under Fed. R. Civ. P. 12(b)(6) because she failed to state a claim upon which relief can be granted. Haynes has no valid claim against the EEOC under Title VII, 28 U.S.C. § 1343, or 42 U.S.C. §§ 1983, 1985, and 1986. This Court and other courts of appeals that have addressed this issue have held that Title VII provides no express or implied cause of action against the EEOC for alleged improper charge processing. Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 6 (2d Cir. 1997); see Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) ("Congress has not authorized, either expressly or impliedly, a cause of action against the EEOC for the EEOC's alleged negligence or other malfeasance in processing an employment discrimination charge."); accord Sheerer v. Rose State College, 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); Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978). Instead, Title VII explicitly provides that charging parties who are dissatisfied with the EEOC's processing and/or disposition of their charge may proceed directly against their employer in court. 42 U.S.C. § 2000e- 5(f)(1); see Ward, 719 F.2d at 314 ("Congress intended that the private right of action preserved by [Title VII] be the all-purpose remedy for charging parties dissatisfied with the EEOC's handling of their charge") (citation omitted); see also 118 Cong. Rec. 7,168 (1972) (disgruntled charging party may "pursue his or her own remedy . . . where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution"). Thus, while Haynes does not have a valid claim against the EEOC, if she was dissatisfied with the EEOC's processing and disposition of her charge, she was free to seek redress against her employer, Penn Traffic, which she has done. See generally Kern v. City of Rochester, 93 F.3d 38, 45 (2d Cir. 1996) ("Title VII is . . . available only to employees (or prospective employees) seeking redress for the unlawful employment practices of their employers.") (citation omitted). Similarly, 28 U.S.C. § 1343 does not provide Haynes with a claim against the EEOC for its charge processing because "[§ 1343] does not itself provide a cause of action." McCottrell, 726 F.2d at 351 n.1. Section 1343 only provides a jurisdictional basis for civil rights cases authorized by federal law and claims under the Constitution. Thus, to the extent that Haynes is arguing that she has a valid claim under § 1343, the district court properly dismissed her claim. The district court also correctly dismissed Haynes' claim under 42 U.S.C. § 1983, which provides a remedy for "deprivation of rights, privileges, or immunities secured by the Constitution and laws" by persons acting under the color of state law. See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 229 (2d Cir. 2004). In the present case, Haynes' allegations involved federal officials acting under color of federal law. Therefore, Haynes failed to state a claim under § 1983 against the EEOC. Moreover, the district court properly dismissed Haynes' claim under 42 U.S.C. § 1985, which provides a cause of action for a conspiracy to interfere with civil rights. To state a claim of conspiracy under § 1985, the plaintiff must allege sufficient facts to support her allegation that the defendants conspired together, and the complaint must contain more than conclusory allegations. Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) (stating that complaints containing only conclusory or vague allegations of a conspiracy to deprive a person of constitutional rights will be dismissed); Francis-Sobel, 597 F.2d at 17 ("Pleading conspiracy under sections 1983 & 1985(3) requires at least minimum factual support of the existence of a conspiracy."); cf. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (stating a claim under the Sherman Act's restraint of trade provision requires enough factual matter, taken as true, to suggest an agreement was made). Here, Haynes has not met her burden of pleading that the EEOC participated in a conspiracy with the other named defendants "for the purpose of impeding, hindering, obstructing, or defeating, in any matter, the due course of justice in any State or territory, with intent to deny to any citizen the equal protection of the laws." R.14 ¶ (2)(e)(1). Haynes' complaint and other filings are utterly devoid of any factual support that the EEOC had any involvement with the other defendants other than her bare assertions and conclusory accusations. For the same reason, the Court should affirm the district court's dismissal of Haynes' claim under 42 U.S.C. § 1986, which provides a cause of action for neglecting to prevent the interference with civil rights. Haynes fails to state a claim against the EEOC under § 1986 because she cannot state a § 1986 claim absent a valid § 1985 claim. Gagliardi, 18 F.3d at 194 ("A claim under section 1986, however, lies only if there is a viable conspiracy claim under section 1985."). Therefore, the district court properly dismissed her claim. CONCLUSION For the aforementioned reasons, the EEOC respectfully requests that this Court affirm the district court's dismissal of Haynes' claim against the EEOC because the district court lacked subject matter jurisdiction, Haynes' claim is barred by the doctrine of sovereign immunity, and she failed to state a claim upon which relief can be granted. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ____________________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7014 Washington, D.C. 20507 (202) 663-4736 davis.kim@eeoc.gov CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Brief of Defendant-Appellee the U.S. Equal Employment Opportunity Commission complies with the type-volume limitations set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). The foregoing brief contains 3,676 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ____________________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7014 Washington, D.C. 20507 (202) 663-4736 davis.kim@eeoc.gov ANTI-VIRUS CERTIFICATION FORM (Second Circuit Local rule 32(a)(1)(E)) CASE NAME: Haynes v. Quality Markets DOCKET NUMBER: 06-1980 I certify that I have scanned for viruses the PDF version of the Amicus Brief that was submitted in this case as an email attachment to briefs@ca2.uscourts.gov and that no viruses were detected. NAME AND VERSION OF ANTI-VIRUS DETECTOR USED: Symantec AntiVirus Program 9.0.3.1000, Version 8/28/2007 rev. 17. ____________________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7014 Washington, D.C. 20507 (202) 663-4736 davis.kim@eeoc.gov Date: August 29, 2007 CERTIFICATE OF SERVICE I hereby certify that the original and nine copies of the foregoing brief were sent this 29th Day of August, 2007, by FedEx Next Day Air delivery, postage prepaid, to the United States Court of Appeals for the Second Circuit. I also certify that I submitted the foregoing brief in PDF format as an e-mail attachment to briefs@ca2.uscourts.gov and to counsel of record for the Appellees. I did not submit the brief as an e-mail attachment to the Appellant in accordance with Local Rule 32(a)(1)(H). I further certify that two copies of the foregoing brief were sent this 29th Day of August, 2007, by FedEx Next Day Air delivery, postage prepaid, to the Appellant and counsel of record for the Appellees at the addresses below: Tonika Haynes 122 Colorado Avenue Buffalo, NY 14211 Dennis J. Jackson, Esq. National Labor Relations Board Special Litigation Branch 1099 14th Street, N.W. Washington, D.C. 20570 James J. Rooney, Esq. Bond, Schoeneck & King, PLLC 40 Fountain Plaza, Key Center Buffalo, NY 14202 Gene M. J. Szuflita, Esq. Belson & Szuflita 1310 8th Avenue Brooklyn, NY 11215 ____________________________ DAVIS L. KIM Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7014 Washington, D.C. 20507 (202) 663-4736, davis.kim@eeoc.gov *********************************************************************** <> <1> "R.#" refers to an entry in the district court's docket sheet. Although Haynes' complaint did not allege a violation of 42 U.S.C. § 1985, she later alleged a violation of § 1985 in her reply to the EEOC's motion to dismiss, and the district court addressed Haynes' § 1985 claim in its decision. <2> Haynes also alleged claims arising under "the U.S. Constitution particularly under the provisions of the [F]irst and [F]ourteenth [A]mendment" in her formal complaint. However, Haynes has waived these claims because she did not raise them in her brief on appeal. See Zhang v. Gonzales, 426 F.3d 540, 546 n. 7 (2d Cir. 2005) (noting that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal). Similarly, Haynes has waived any objection she may have had to the district court's decision to deny her motion to amend her complaint to include individual employees of the EEOC as defendants because she did not raised this issue in her brief. Id. Such a claim would, in any event, also fail for lack of jurisdiction and/or failure to state a claim.