Case No. 09-50243 ________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________________________________ KIMBLEY DENISE HILL, Plaintiff-Appellant, versus FERNANDO ORTEGON; SYLVIA CONZALES; SONDRA CREIGHTON; DAVID MAGANA; DAVID AGUILAR; FLOYD BERMEA; RUDY GARZA; ROBIN SANDERS; DIANE WEBB, in her Official Capacity; DEBBIE WILMS; MELISSA POOLE; CHRISTINE JONES; MARGE REUE; CITY OF AUSTIN PUBLIC WORKS; HOWARD & KOBELAN, in its Official Capacity, Defendants-Appellees. ________________________________________________________ On Appeal from the United States District Court for the Western District of Texas Honorable Lee Yeakel, U.S. District Judge ________________________________________________________ BRIEF OF APPELLEES DIANE WEBB IN HER OFFICIAL CAPACITY AND THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ________________________________________________________ JAMES L. LEE U.S. EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E., Room 5NW14P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4571 (phone) LORRAINE C. DAVIS (202) 663-7090 (fax) Assistant General Counsel daniel.vail@eeoc.gov DANIEL T. VAIL Attorney STATEMENT REGARDING ORAL ARGUMENT Defendants-Appellees Diane Webb and the U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission") believe that oral argument is unnecessary in this case. The issues presented in this appeal are straightforward and relatively simple. As discussed in greater detail below, it appears Plaintiff- Appellant Kimbley Hill has sued the EEOC and Webb, a Commission employee, over the way in which the Commission processed two charges of employment discrimination Hill filed with the Commission against her former employer, the City of Austin. However, the law of this Circuit (and of every Circuit to have considered the issue) precludes charging parties like Hill from bringing this kind of claim against the EEOC or its employees. Therefore, Webb and the Commission do not believe that oral argument will aid this Court in resolving this particular claim on appeal. To the contrary, holding oral argument on this claim would only serve to further waste the valuable resources of this Court and the federal government. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . 1 I. Statement of Facts. . . . . . . . . . . . . . . . . . . . . 1 II. Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. Hill has waived any argument for reversal of the District Court's dismissal of her claim against Webb and the EEOC by failing to raise it in her opening brief on appeal. . . . . . . . . . . . . . . 7 II. The District Court lacked subject matter jurisdiction over Hill's claim against Webb and the EEOC because the United States has not waived sovereign immunity for this kind of claim. . . 8 III. The District Court properly dismissed Hill's claim against Webb and the EEOC because this Court has squarely and repeatedly held that allegations of this kind fail to state a claim upon which relief can be granted. . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . C-1 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . .C-2 TABLE OF AUTHORITIES Cases Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2 (2d Cir. 1997). . . . . . . . . . . . . . . . . . 13 Block v. North Dakota ex rel. Board of Univ. & Sch. Lands, 461 U.S. 273 (1983). . . . . . . . . . . . . . . . . . . . . 9 Bodin v. Vagshenian, 462 F.3d 481 (5th Cir. 2006). . . . . . . . . . . . . . . . . . 8 Brunig v. Clark, 560 F.3d 292 (5th Cir. 2009). . . . . . . . . . . . . . . . . . 8 Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006). . . . . . . . . . . . . . . . . . . . . 11 EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984). . . . . . . . . . . . . . . . . 12 Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994). . . . . . . . . . . . . . . . . . . . . 9 Frame v. City of Arlington, 575 F.3d 432 (5th Cir. 2009). . . . . . . . . . . . . . . . . .12 Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979). . . . . . . . . . . . . . . . . . 13 Freeman v. United States, 556 F.3d 326 (5th Cir. 2009). . . . . . . . . . . . . . . . . .10 Gale v. Carnrite, 559 F.3d 359 (5th Cir. 2009). . . . . . . . . . . . . . . . . . 7 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979). . . . . . . . . . . . . . . . . .13 Gibson v. Mo. Pac. R.R. Co., 579 F.2d 890 (5th Cir. 1978). . . . . . . . . . . . 13, 14, 15 Goodman v. Harris County, 571 F.3d 388 (5th Cir. 2009). . . . . . . . . . . . . . . . . . 4 Kentucky v. Graham, 473 U.S. 159 (1985). . . . . . . . . . . . . . . . . . . . . 4 Lane v. Pena, 518 U.S. 187 (1996). . . . . . . . . . . . . . . . . . . . . 10 Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). . . . . . . . . . . . . . . . . . . . . 14 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984). . . . . . . . . . . . . . . . . 13 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . 5, 11, 12, 13, 14, 15 Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . . . . . . . . . . . . 14 Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922 (5th Cir. 2008). . . . . . . . . . . . . . . . . 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 Stanton v. United States, 434 F.2d 1273 (5th Cir. 1970). . . . . . . . . . . . . . . . . 9 United States v. Mitchell, 445 U.S. 535 (1980). . . . . . . . . . . . . . . . . . . . . 9 Wagstaff v. U.S. Dep't of Educ., 509 F.3d 661 (5th Cir. 2007). . . . . . . . . . . . . . . . . .10 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983). . . . . . . . . . . . . . . . . 13 Williamson v. U.S. Dep't of Agric., 815 F.2d 368 (5th Cir. 1987). . . . . . . . . . . . . . . . . . 9 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 206(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(b). . . . . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 2000e-5(e)(1). . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . 13 Rules Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. App. P. 32(a)(7)(B). . . . . . . . . . . . . . . . . . . . . C-1 Fed. R. Civ. P. 4(i)(1). . . . . . . . . . . . . . . . . . . . . . . . 7 Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . 8 Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . .12 STATEMENT OF JURISDICTION The district court entered final judgment in this case on March 5, 2009. (USCA5 728-29.) Hill filed a timely notice of appeal on March 20, 2009. (USCA5 914.) See Fed. R. App. P. 4(a)(1). This Court now has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether this Court should affirm the district court's dismissal of Hill's claim against Webb and the EEOC, where (1) Hill has waived this claim on appeal; (2) the district court did not have subject matter jurisdiction over this claim in the first instance; and (3) Hill's allegations against Webb and the EEOC also fail to state a claim upon which relief can be granted. STATEMENT OF THE CASE I. Statement of Facts Hill worked for the Department of Public Works in the City of Austin, Texas. (USCA5 414.) On or about June 12, 2007, Hill filed a charge of discrimination with the EEOC's field office in San Antonio, Texas, alleging that the City of Austin Department of Public Works had violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d), by discriminating against her on the basis of sex. (USCA5 24.) The charge also alleged that the City of Austin had retaliated against Hill for complaining about discrimination. (USCA5 24.) Webb works as an investigator in the EEOC's San Antonio field office. On November 1, 2007, Webb, acting on the EEOC's behalf, sent Hill a letter informing her that the EEOC was dismissing her charge. (USCA5 23.) The same day, the EEOC also sent Hill a form entitled "Dismissal and Notice of Rights," indicating that the EEOC was unable to conclude that the information it obtained during its investigation of Hill's charge established a violation of the statutes the EEOC enforces. (USCA5 13.) The letter also informed Hill of her right to sue her employer based on the allegations included in the charge. (USCA5 13.) On or about October 6, 2007, Hill filed another charge with the EEOC, this time alleging that the City of Austin had violated Title VII by discriminating against her on the basis of race, color, and sex, and by retaliating against her. (USCA5 43.) On or about November 8, 2007, the EEOC issued a "no cause" finding and notice-of-right-to-sue letter with respect to this second charge. (USCA5 32.) II. Proceedings Below On January 29, 2008, Hill filed this lawsuit in the U.S. District Court for the Western District of Texas against twelve individuals in their official capacity as City of Austin employees, against Hill's former attorney, and against Webb in her official capacity as an EEOC employee. (USCA5 11, 18.) Hill's complaint does not clearly state the precise nature of Hill's claim against Webb and the EEOC. The complaint indicated that it was filed pursuant to Title VII and the EPA. (USCA5 11.) The complaint also stated that Hill's "REASON FOR FILING SUIT IS CIVIL RIGHTS ACT OF 1964, ILLEGAL MISTREATMENT BY CITY OF AUSTIN-PUBLIC WORKS." (USCA5 12.) The complaint stated, "I filed a new claim October 3, 2007" and "Charge # not yet-Now, throw out Dec 2007? Ms. Webb doing!" (USCA5 16.) Hill's complaint also stated, "NEW CHARGE OCT 8, 2007, Copying, Showing you how Ms. Webb of EEOC Dismiss my charge Nov 8, 2007. WHY?" (USCA5 42.) Except for these two isolated references to Webb, apparently expressing frustration over the way in which the Commission had processed Hill's charges, there is no further detail in the complaint describing Hill's claim against Webb and the EEOC.<1> On March 30, 2008, Webb and the EEOC filed a motion to dismiss Hill's claim against Webb acting in her official capacity and the EEOC. (USCA5 354- 369.)<2> The EEOC alleged that Hill's complaint should be dismissed because it had been improperly served, the district court lacked subject matter jurisdiction over the claim, and the complaint failed to state a claim upon which relief could be granted. (USCA5 354.) Hill did not file any substantive response to this motion to dismiss.<3> On September 17, 2008, the district court granted the EEOC's motion. (USCA5 622-23.) The district court first found that Hill had not submitted any response to the EEOC's motion, and it thus could treat the EEOC's motion to dismiss as uncontested. (USCA5 622.) The district court then further found that under applicable law, Hill's complaint against Webb and the EEOC failed to state a claim upon which relief could be granted. (USCA5 622-23 (citing Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002)).) The district court then dismissed Hill's claim against Webb and the EEOC with prejudice. (USCA5 623.) The district court ultimately granted motions to dismiss by all other defendants in this action. (USCA5 620-21, 726-27.) SUMMARY OF ARGUMENT This Court should affirm the district court's dismissal of Hill's claim against Webb and the EEOC for several reasons. First, Hill has failed in her opening appellate brief to articulate the basis of her claim against Webb and the EEOC, much less to present any argument supporting reversal of the district court's decision dismissing this claim. Hill thus has waived any argument on this issue. This alone is grounds for affirmance. From what Hill alleged below, it appears her claim is that Webb and the EEOC failed to process her charges of discrimination properly. However, Congress has not waived the government's sovereign immunity for claims of this kind, and the district court thus had no subject matter jurisdiction to adjudicate Hill's claim. This provides an additional basis for affirmance. Finally, this Court has clearly and repeatedly recognized that Title VII does not give rise to a claim by a charging party to challenge the Commission's handling or disposition of his or her charge, and that dismissal is proper in such cases. There simply is no cause of action here. Therefore, the district court's dismissal of Hill's claim against the Commission also should be affirmed because Hill's allegation fails to state a claim upon which relief can be granted. ARGUMENT<4> I. Hill has waived any argument for reversal of the District Court's dismissal of her claim against Webb and the EEOC by failing to raise it in her opening brief on appeal. In her opening brief in this appeal, Hill does not explain the basis of her claim against Webb or the EEOC, much less present any argument as to why the district court erred in dismissing this claim. In fact, in her entire brief, Hill makes only one passing reference to Webb. See Hill's Opening Br. at 5 ("Grievance about Derek A. Howard, Attorney at Law and Diane Webb of EEOC Investigator Certificate of Interested Persons Regarding Appeal.") Thus, Hill has waived any argument for reversal of the district court's dismissal of her claim against Webb and the EEOC. See, e.g., Gale v. Carnrite, 559 F.3d 359, 362 n.4 (5th Cir. 2009) ("We have held that failure to provide any legal or factual analysis of an issue on appeal waives that issue.") (internal quotation marks omitted); Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922, 926 (5th Cir. 2008) ("A party waives an issue if he fails to adequately brief it on appeal" and "[m]erely mentioning a claim does not constitute a supported argument or adequate briefing.") (internal quotation marks omitted). This waiver alone provides a basis for affirmance here. II. The District Court lacked subject matter jurisdiction over Hill's claim against Webb and the EEOC because the United States has not waived sovereign immunity for this kind of claim. While it is far from clear from Hill's complaint (or any of her other filings), it appears her claim against Webb and the EEOC is that she was dissatisfied with the EEOC's processing of her charges of discrimination. Assuming this was the basis for Hill's claim against Webb and the EEOC, this Court should affirm the district court's dismissal of this claim on the additional ground that the district court lacked subject matter jurisdiction over this type of claim.<5> See Fed. R. Civ. P. 12(b)(1) (allowing motions for dismissal for lack of subject matter jurisdiction). Subject matter jurisdiction is lacking where the United States has not waived sovereign immunity for the kind of claim at issue. Bodin v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006). Because the United States has not waived sovereign immunity or consented to suit for the type of harm Hill appears to be alleging, the district court did not have subject matter jurisdiction over this matter. The Supreme Court has held that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued" and that "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal quotation marks omitted); see also Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983) ("The basic rule of federal sovereign immunity is that the United States cannot be sued at all without the consent of Congress."); Stanton v. United States, 434 F.2d 1273, 1275 (5th Cir. 1970) ("Thus the district courts' jurisdiction over the United States depends entirely upon the terms of the congressional waiver of sovereign immunity."). This doctrine of sovereign immunity is not limited to suits in which the United States is the named defendant, but applies with equal force to suits - like this one - in which a federal agency or a federal employee acting in his or her official capacity is named as the defendant. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."); see also Williamson v. U.S. Dep't of Agric., 815 F.2d 368, 373 (5th Cir. 1987) ("The doctrine of sovereign immunity is inherent in our constitutional structure" and "renders the United States, its departments, and its employees in their official capacities as agents of the United States immune from suit except as the United States has consented to be sued."). Because sovereign immunity is jurisdictional in nature, waiver of it must be "'unequivocally expressed in statutory text and will not be implied[.]'" Freeman v. United States, 556 F.3d 326, 335 (5th Cir. 2009) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). Further, the plaintiff bears the burden of showing that Congress has unequivocally waived the government's sovereign immunity. Freeman, 556 F.3d at 334; see also Wagstaff v. U.S. Dep't of Educ., 509 F.3d 661, 664 (5th Cir. 2007) ("In order to hale the federal government into a court proceeding, a plaintiff must show that there has been a valid waiver of sovereign immunity.") (internal quotation marks omitted). Hill has not met this burden here. She has not identified any statute that waives the Commission's sovereign immunity for the sort of suit Hill has brought - i.e., a claim alleging dissatisfaction with the manner in which the EEOC has processed a private sector charge of employment discrimination. Moreover, there is no such statute.<6> Hill's suit apparently is brought pursuant to Title VII and the EPA. Neither law reflects a waiver of sovereign immunity to allow suits by individuals who have filed discrimination charges alleging dissatisfaction with the EEOC's handling of such charges. Similarly, neither law contains any grant of jurisdiction to permit district courts to entertain such suits. In fact, this Court has squarely 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. See Newsome, 301 F.3d at 232 ("To the extent that Newsome is attempting to invoke Title VII as a jurisdictional basis for suing the EEOC, she cannot do so."). Accordingly, this Court should affirm the district court's dismissal of Hill's claim against Webb and the EEOC for lack of subject matter jurisdiction. III. The District Court properly dismissed Hill's claim against Webb and the EEOC because this Court has squarely and repeatedly held that allegations of this kind fail to state a claim upon which relief can be granted. Finally, this Court should also affirm because the district court correctly ruled that Hill's complaint fails to state a claim against Webb and the EEOC upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6) (authorizing motions for dismissal for failure to state a claim). This Court reviews the district court's ruling on this issue de novo. Frame v. City of Arlington, 575 F.3d 432, 435 (5th Cir. 2009). In dismissing Hill's claim against Webb and the Commission, the district court cited Newsome, a case involving a similar challenge to the Commission's handling of a Title VII charge. In Newsome, this Court refused to recognize a cause of action against the Commission for alleged inadequacies in the Commission's investigation or resolution of a discrimination charge (like the ones Hill filed). This Court reasoned that while Title VII gives the Commission the responsibility for investigating such charges, nothing in Title VII mandates a particular method or manner for doing so. See Newsome, 301 F.3d at 231 (examining 42 U.S.C. § 2000e-5(b)). Rather, "'the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency.'" Newsome, 301 F.3d at 231 (quoting EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984)). Accordingly, this Court ruled, Title VII simply "does not confer on a charging party a right of action against the EEOC" for alleged deficiencies in the processing of charges, and "it was proper for the district court to dismiss Newsome's Title VII claims." Newsome, 301 F.3d at 232.<7> In reaching this result in Newsome, this Court cited its earlier ruling in Gibson v. Missouri Pacific Railroad Co., 579 F.2d 890 (5th Cir. 1978). There, as here (and as in Newsome), a charging party sued the EEOC for allegedly erroneously dismissing his charge of discrimination under Title VII. This Court held that the district court had properly dismissed the plaintiff's suit "as to the defendant EEOC" since Title VII "confers no right of action against the enforcement agency." Gibson, 579 F.2d at 891. This Court reasoned that "[n]othing done or omitted by EEOC affected Gibson's rights" and the EEOC's "adverse determination [on the charge] could not have precluded, and in fact did not preclude, the present suit by Gibson." Id.; see also 42 U.S.C. § 2000e-5(f)(1) (providing that "[i]f a charge filed with the Commission . . . is dismissed by the Commission . . . a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved"). Accordingly, this Court in Gibson ruled, "[t]he relief sought of further investigation or action by the agency would be meaningless." Id. Similarly here, the Commission's administrative dismissal of Hill's charges could not have precluded her - and in fact has not prevented her - from seeking de novo review of the matter by suing her former employer in federal court. Cf. Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 365-66 (1977) ("The retention of the private right of action . . . allow[s] the person aggrieved to elect to pursue his or her own remedy under [Title VII] in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution.") (internal quotation marks omitted). However, since there is no cause of action for Hill's claim against Webb and the Commission under Title VII (or the EPA),<8> she has failed to state a claim upon which relief can be granted. Therefore, dismissal of this claim was the district court's only appropriate course of action and this Court must affirm. See Newsome, 301 F.3d at 232 (dismissal the appropriate remedy); Gibson, 579 F.2d at 891 (same). CONCLUSION For the foregoing reasons, the EEOC requests that this Court affirm the district court's dismissal of Hill's claim against Webb and the Commission. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3,673 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I certify that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003 in Times New Roman 14 point. ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov Date: October 5, 2009 CERTIFICATE OF SERVICE I certify that on October 5, 2009, I served the requisite number of originals/copies (including the requisite electronic versions) of this brief by mailing them via Federal Express overnight delivery to: Kimbley Denise Hill 7601 Daffan Lane #94 Austin, TX 78724 Christine G. Edwards City of Austin Law Department 301 W. 2nd Street Austin, TX 78767 Kristen S. Coleman Derek A. Howard Howard & Kobelan Suite 1720 100 Congress Avenue Austin, TX 78701-0000 ______________________________ DANIEL T. VAIL Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW14P Washington, D.C. 20507 (202) 663-4571 (phone) (202) 663-7090 (fax) daniel.vail@eeoc.gov *********************************************************************** <> <1> Other documents in the record do indicate that Hill filed suit against Webb and the EEOC because Hill was dissatisfied with the EEOC's processing of Hill's charges. For example, in one filing, Hill stated that "EEOC failed to handle my case instead Ms[.] Webb gave plaintiff a right to sue letter?" (USCA5 691.) This filing also alleged that "if someone would look and read the legal documents is [sic] will show how plaintiff is being discrimination [sic] by our leader and EEOC . . . ." (USCA5 692.) In another document Hill filed with the district court, Hill included a statement she prepared dated October 1, 2007. (USCA5 194.) In this statement, Hill expressed frustration with the Commission's alleged inaction on her charges, noting "MS. WEBB YOU ARE TAKING ACTION ALSO CITY'S WAY 'ADVERSE ACTION'" and "EEOC IS FOR HELPING EMPLOYEE'S?" (USCA5 194.) Hill criticized Webb for indicating "THAT I DID NOT HAVE A CASE" and asked "WHO DO YOU WORK FOR GOVERNMENTS OR THE CITY OF AUSTIN?" (USCA5 194.) Hill noted that "BASED ON OUR CONVERSATION TODAY I KNEW YOU WERE NOT TRYING TO HELP AND I WANT YOU OFF THIS CASE AND I WILL BE REPORTING YOU ALSO." (USCA5 194.) Hill also stated that "AFTER TALKING WITH MS WEBB TODAY KIM ALREADY KNEW THAT SHE WAS WORKING WITH MY EMPLOYERS." (USCA5 194.) Hill accused Webb of "NOT DOING ANYTHING!" and demanded to have Webb's supervisor or "THE DIRECTOR OF EEOC" call her. (USCA5 194.) <2> Because a complaint against an agency employee in her official capacity is actually a suit against the agency itself, Hill's lawsuit here is properly treated as an action against the EEOC. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (explaining that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity" of which the government official is an agent, because the real party in interest is the government entity); Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (same) (quoting Graham). <3> The only submission by Hill that arguably could be construed as remotely responsive to the EEOC's motion to dismiss was a series of objections Hill filed to a report and recommendation by the magistrate judge recommending that a motion to dismiss filed by Hill's former attorney be granted. (USCA5 376, 380, 381, 389.) <4> Hill failed to effectuate proper service on Webb and the EEOC. The complaint contained a certificate of service purporting to certify that the complaint had been properly served on Webb by sending it to 5410 Fredericksburg Road, Suite 200, in San Antonio, Texas, 78229-3555 - the address of the EEOC's San Antonio field office. (USCA5 60.) A summons was later served on "EEOC - Diane Webb" by U.S. mail to this same address. (USCA5 82, 110-112.) The EEOC sent a letter to Hill dated February 15, 2008, informing Hill that her attempt to serve Webb was deficient because Hill had not served the summons and complaint on the Attorney General and on the U.S. attorney for the district where the action was brought, as required by Federal Rule of Civil Procedure 4(i)(1). (USCA5 493.) Hill never cured this defect in service. <5> While this was not the basis for the district court's dismissal of Hill's claim against Webb and the EEOC, this Court may nevertheless affirm on any ground supported by the record. See Brunig v. Clark, 560 F.3d 292, 295 n.8 (5th Cir. 2009). <6> A statutory waiver of sovereign immunity often takes one of two forms: Either a statute might evince Congress's intent to make the United States liable in the same manner and to the same extent as a private party would be liable for committing a certain type of injury, or a statute might provide courts with jurisdiction to adjudicate claims against the United States alleging a particular harm. Cf. Dolan v. U.S. Postal Serv., 546 U.S. 481, 484-85 (2006) (pointing out these two types of waivers in the Federal Tort Claims Act). There simply is no statute of either kind waiving the sovereign immunity of the federal government and providing consent to sue the EEOC or its employees for improper charge processing. <7> The other Courts of Appeals to have addressed this issue have similarly held that no express or implied cause of action exists against the Commission for claims of this kind. See 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, 17-18 (1st Cir. 1979); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979). <8> While this Court has never had occasion to extend the reasoning in Newsome and Gibson to Equal Pay Act cases, there is no rationale for treating claims brought under the two statutes differently. Arguably, the rationale for refusing to recognize a cause of action against the Commission for deficient charge processing is even greater under the EPA than it is under Title VII. Under Title VII, victims of discrimination must first file a charge of discrimination with the EEOC or an equivalent state or local body before they may file suit. See, e.g., 42 U.S.C. § 2000e-5(e)(1) (such charges "shall" be filed). By contrast, under the EPA, aggrieved individuals may instead elect to go straight to court. See Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 640 (2007), superseded by statute on other grounds, Pub. L. No. 111-2 (Jan. 29, 2009) (explaining "the EPA does not require the filing of a charge with the EEOC"). At the least, the EEOC's handling of Hill's elective EPA charge certainly creates no greater cause for concern or judicial review than its handling of Hill's mandatory Title VII charges.