Jaffer v. EEOC (4th Cir.) Brief as appellee July 14, 2004 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT __________________________________________ No. 04-1504 __________________________________________ SHAHSULTAN JAFFER, Plaintiff-Appellant, v. THE NATIONAL BLACK CAUCUS AND CENTER ON BLACK AGED, INC., LARRY CRECY, ANGELA HUGHES, VALERIE CHESTNUT, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, RICHARD E. WALZ, E. PRICE, and JOHN AND JANE DOES, 1 through 99 Defendants-Appellees. __________________________________________________________ On Appeal from the United States District Court for the Middle District of North Carolina __________________________________________________________ INFORMAL BRIEF OF THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS DEFENDANT-APPELLEE __________________________________________________________ ERIC S. DREIBAND MEGUMI K. FUJITA General Counsel Attorney VINCENT J. BLACKWOOD U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, NW, 7th Floor Assistant General Counsel Washington, DC 20507 (202) 663-4098 STATEMENT OF JURISDICTION The district court did not have jurisdiction over this action because there is no statutory or constitutional basis for appellant's claims against the Equal Employment Opportunity Commission ("EEOC" or "Commission") or its employees in their official or individual capacity. This Court has appellate jurisdiction over the final order of the district court pursuant to 28 U.S.C. 1291. STATEMENT OF ISSUE PRESENTED FOR REVIEW Whether the district court properly dismissed Jaffer's complaint against EEOC and its employees. STATEMENT OF THE CASE A. Statement of Facts On June 19, 2002, Shahsultan Jaffer filed a formal charge of discrimination against the National Caucus and Center on Black Aged, Inc., ("NCBA") with the EEOC. In this charge, Jaffer alleged that the NCBA discriminated against her based on her religion. The EEOC dismissed Jaffer's charge, finding that Jaffer and the NCBA did not have an employee-employer relationship as defined under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. B. Proceedings Below On January 23, 2003, Jaffer filed this suit pro se in the United States District Court for the Middle District of North Carolina in Durham against the NCBA, the Commission, and its employees, Richard E. Walz, Director of the Raleigh Area Office of the EEOC, and Evelyn Price, an investigator employed by the EEOC. In this complaint, Jaffer alleged, among other things, that the EEOC erroneously dismissed her charge of discrimination against NCBA in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., 42 U.S.C. 1981, 1983, North Carolina's Civil Rights Statute N.C. Gen. Stat. 99-D1, and breach of contract. On February 20, 2001, the Commission filed a motion to dismiss Jaffer's complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. The district court entered final judgment as to all parties on December 23, 2003, granting, inter alia, the EEOC's motion to dismiss. In so ruling, the district court found that Jaffer's complaint failed to state a claim for which relief may be granted under Fed. R. Civ. Pro. 12(b)(6). The district court determined that Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., provided no cause of action for Jaffer to challenge the dismissal of her charge by the EEOC. The district court also found that Jaffer's 42 U.S.C. 1981 and 1983 claims against the EEOC and its employees were barred by sovereign immunity. The district court further determined that the North Carolina General Statute N.C. Gen. Stat. 99-1D was not applicable to government entities or officials for actions taken within the scope of official government duties. The district court additionally found that Jaffer's breach of contract claim failed because she did not establish that a contract existed between her and the EEOC. On March 11, 2004, the district court denied Jaffer's subsequent "Motion for Relief from Void Orders" and "Motion for Disqualification of Magistrate Judge Sharpe and District Court Judge Frank Bullock," which were filed on March 9, 2004. On April 28, 2004, Jaffer filed a timely notice of appeal of the district court's final order dismissing her claims. STANDARD OF REVIEW This court reviews de novo the dismissal of a complaint for failure to state a claim, "viewing the complaint in the light most favorable to the plaintiff and accepting as true all well-pleaded allegations." South Carolina Dept. of Health and Environmental Control, No. 03-1329, 2004 WL 1244270 (4th Cir. June 8, 2004). ARGUMENT THE DISTRICT COURT PROPERLY DISMISSED JAFFER'S CLAIMS AGAINST THE EEOC A. The District Court Properly Dismissed Jaffer's Claims for Failing to State a Claim The district court properly dismissed Jaffer's claims contesting EEOC's processing of her charge. It is well-settled that Title VII does not authorize a cause of action against the EEOC by individuals who believe the agency mishandled their charge of discrimination. This Court and every circuit that has considered the question has held that Title VII provides neither an express nor an implied cause of action against the EEOC under these circumstances. See, e.g., Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979); 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 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 Maine, 597 F.2d 15, 17 (1st Cir. 1979); Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978). Instead, Congress has provided a remedy for a plaintiff dissatisfied with the EEOC's handling of 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 complainant is "entitled to de novo review of [her] claims." McCottrell, 726 F.2d at 352; see also Ward, 719 F.2d at 313. Jaffer has, in fact, availed herself of this remedy by filing suit in federal court against the NCBA to litigate her claim of unlawful employment discrimination. The purpose of Title VII is to provide redress for "unlawful employment practices" by employers, employment agencies, and labor organizations. 42 U.S.C. 2000e-2. Jaffer has not alleged any "unlawful employment practices" by the EEOC recognized under Title VII -- the EEOC is not Jaffer's employer, nor is it an employment agency or labor organization covered by the statute. Accordingly, this Court should affirm the district court's dismissal of Jaffer's complaint against the EEOC. B. Dismissal of Jaffer's Claims is Also Proper Because The District Court Lacked Subject Matter Jurisdiction The district court properly dismissed Jaffer's claims because the district court lacked subject matter jurisdiction. It is well established that there is no jurisdictional basis under Title VII upon which to assert claims against EEOC for the agency's actions in processing a charge of discrimination. Title VII contains only three provisions conferring subject matter jurisdiction, none of which applied to Jaffer's claims. See 42 U.S.C. 2000e-5(f) (authorizing individual suits by EEOC or a charging party against private sector employers, or the Department of Justice against governmental employers); 42 U.S.C. 2000e-6 (permitting "pattern or practice" suits by EEOC); and 42 U.S.C. 2000e-16 (authorizing suits by federal employees against public sector employers). Because none of these provisions supply a jurisdictional basis for suits against the Commission or its employees by an individual dissatisfied with the processing of her charge, the district court's decision may also be affirmed on the grounds that the court lacked subject matter jurisdiction. CONCLUSION Because the district court properly dismissed Jaffer's complaint against the Commission, we request that this Court affirm the district court's decision. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ Megumi K. Fujita Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4813 CERTIFICATE OF SERVICE I, Megumi K. Fujita, hereby certify that on this ____ day of July 2004, the original and one copy of the foregoing informal brief were mailed first class, postage prepaid, to the Clerk of Court, and one copy was mailed first class, postage prepaid, to all parties at the: Shahsultan Jaffer 600 West Poplar Avenue, Apt. 234 Carrboro, NC 27510 C. Matthew Keen, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2301 Sugar Bush Road, Suite 511 Raleigh, NC 27622 ___________________________ Megumi K. Fujita Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4813 _______________________________ 1 Jaffer has abandoned claims raised before the district court against the EEOC under 42 U.S.C. §§ 1981 and 1983, N.C. Gen. Stat. §99-1D, and breach of contract, inasmuch as her brief on appeal makes no argument regarding these claims. In any event, the district court properly dismissed these claims, as well as those raised under Title VII, for the reasons given in the district court’s opinion. District Court Memorandum Opinion, 4-8 (December 23, 2003). 2 Although Jaffer has described her claim as one of third-party interference by the EEOC with her employment discrimination rights, Jaffer is, in actuality, merely asserting her dissatisfaction with the EEOC’s administrative determination on the merits of her claims against the NCBA. 3 Jaffer contends that the EEOC’s dismissal of her charge constituted third-party interference. She asserts that the dismissal of her charge interfered with her ability to file a charge, testify, assist or participate in an investigation, hearing, or proceeding. Jaffer has failed to show, and the record belies, that any such interference occurred. Jaffer has not demonstrated, nor could she, how the EEOC’s decision on the merits of her charge hindered her ability to exercise her rights under Title VII. As such, Jaffer’s claim that the EEOC interfered with her rights under the statute is, on its face, without merit. 4 The EEOC argued in its motion to dismiss that Jaffer failed to properly serve the EEOC pursuant to Fed. R. Civ. Pro. 4(i)(2), since she failed to serve the U.S. Attorney and the U.S. Attorney General. On appeal, Jaffer argues that because the EEOC filed an untimely response in opposition to Jaffer’s “Motion for Relief from Void Orders” and “Motion for Disqualification of Magistrate Judge Sharp and District Judge Frank Bullock,” the Commission has waived any objections to improper service. This argument makes no sense. Jaffer has failed to assert, much less establish, any connection between the timeliness of the EEOC’s opposition to these motions and the EEOC’s arguments in its motion to dismiss stating that Jaffer failed to properly serve the EEOC according to the requirements in Fed. R. Civ. Pro. 4(i)(2). Additionally, Jaffer has not, and indeed could not, show that the EEOC’s response to these motions was, in fact, untimely. Jaffer filed these motions on March 9, 2004. The EEOC submitted a timely response on March 15, 2004.