IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________________________________
No. 03-1246
____________________________________________
CAROLYN E. O'CONNOR,
Plaintiff-Appellant,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Defendant-Appellee.
_________________________________________________________
On Appeal from the United States District Court
for the District of Massachusetts
_________________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS APPELLEE
_________________________________________________________
NICOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
JOHN F. SUHRE
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street N.W., Room 7040
Washington, D.C. 20507
(202) 663-4716
TABLE OF CONTENTS
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Nature of the Case and Proceedings Below . . . . . . . . . . . . . . 2
2. District Court's Decision . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. THE DISTRICT COURT PROPERLY DISMISSED
PLAINTIFF'S COMPLAINT AGAINST THE
COMMISSION UNDER 28 U.S.C. § 1915(E)(2)(b) . . . . . . . . . . . . . 5
II. THE DISTRICT COURT LACKED SUBJECT MATTER
JURISDICTION OVER PLAINTIFF'S CLAIMS . . . . . . . . . . . . . 8
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Certificate of Compliance With Rule 32(a)
Addendum
TABLE OF AUTHORITIES
Cases Page(s)
Archie v. Chicago Truck Drivers, Helpers and Warehouse
Workers Union, 585 F.2d 210 (7th Cir. 1978) . . . . . . . 7
Baba v. Japan Travel Bureau International, Inc.,
111 F.3d 2 (2d Cir. 1997) . . . . . . . . . . . . . . . . 6
Bender v. Williamsport Area School District,
475 U.S. 534 (1986) . . . . . . . . . . . . . . . . . . . 8
Bradshaw v. Correctional Medical Services, Inc., 2001 WL 391497
(1st Cir., April 12, 2001) ................................. 5
Cole v. United States, 657 F.2d 107 (7th Cir.),
cert. denied, 454 U.S. 1083 (1981) ... . . . . . . . . . .10
Evans v. C & P Tel. Co., 30 FEP Cases (BNA) 1814
(D. Md. 1981) .............................................. 9
Feldstein v. EEOC, 547 F. Supp. 97 (D. Mass. 1982) . . . . 7
Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir.)
cert. denied, 444 U.S. 949 (1979) . . . . . . . . . 4, 6, 7
Golyar v. McCausland, 738 F. Supp. 1090
(W.D. Mich. 1990) . . . . . . . . . . . . . . . . . . .6, 7
Holloman v. Watt, 708 F.2d 1399 (9th Cir. 1983),
cert. denied, 466 U.S. 958 (1984) . . . . . . . . . . . .10
Lockerty v. Phillips, 319 U.S. 182 (1943) . . . . . . . . 8
McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984) . . . . . 6
Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) 7
TABLE OF AUTHORITIES
Cases Page(s)
Peavey v. Polytechnic Institute of New York, 749 F. Supp. 58
(E.D.N.Y. 1990), aff'd, 940 F.2d 628 (2d Cir. 1991) . . . 6
Reed v. EEOC, 100 F.3d 957, 1996 WL 636171
(6th Cir. Oct. 30, 1996) . . . . . . . . . . . . . . . . . . 6
Scheerer v. Rose State College, 950 F.2d 661
(10th Cir. 1991) . . . . . . . . . . . . . . . . . . 6
Selden Apts. v. United States Department of HUD,
785 F.2d 152 (6th Cir. 1986) . . . . . . . . . . . . . . . 8
Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979) . . . . . . 6
United States Department of Energy v. Ohio,
503 U.S. 607 (1992) . . . . . . . . . . . . . . . . . . . 9
United States v. Mitchell, 463 U.S. 206 (1983) . . . . . . 9
United States v. Nordic Village, Inc., 503 U.S. 30 (1992). 9
Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983),
cert. denied, 466 U.S. 953 (1984) . . . . . . . . . . .6, 7
Statutes
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . 4
42 U.S.C. § 2000e-5 . . . . . . . . . . . . . . . . 6, 7, 9
28 U.S.C. § 1915(E)(2)(b) . . . . . . . . . . . . . .passim
118 Cong. Rec. 7,168 (1972) . . . . . . . . . . . . . . . . .6
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 03-1246
_____________________
CAROLYN E. O'CONNOR,
Plaintiff-Appellant,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ,
Defendant-Appellee.
_________________________________________________________
On Appeal from the United States District Court
for the District of Massachusetts
_________________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS APPELLEE
_________________________________________________________
STATEMENT OF JURISDICTION
The district court did not have jurisdiction over this action because there is
no statutory or constitutional basis for plaintiff's claims against the Equal
Employment Opportunity Commission, an agency of the federal government.
Final judgment was entered against the plaintiff on January 24, 2003. Addendum
("Add.") at 2 (doc. no. 8).<1> The plaintiff filed a timely notice of appeal on January
30, 2003. Id. (doc. no.9). This Court has jurisdiction over the appeal under 28
U.S.C. § 1291.
STATEMENT OF THE ISSUE
Whether the district court properly dismissed plaintiff's claim alleging that
the Equal Employment Opportunity Commission improperly processed and
disposed of her charge of discrimination against a private employer.
STATEMENT OF THE CASE
1. Nature of the Case and Proceedings Below.
This is an appeal from a decision of the district court dismissing this suit
(02-CV-10795). On May 2, 2002, Carolyn E. O'Connor filed in the district court
an application to proceed without prepayment of fees and a complaint alleging that
the Commission improperly investigated and wrongfully dismissed a charge she
had filed against a former employer.<2> Add. at 1 (doc. no. 1). On June 5, 2002,
O'Connor filed an amended complaint. Add. at 3. On December 18, 2002, the
district court entered an order conditionally granting plaintiff's application and
permitting her to file her amended complaint. However, the court stated that her
amended complaint would be dismissed pursuant to 28 U.S.C. § 1915(e) if she did
not show good cause in writing why her case should not be dismissed within 35
days. Add. at 16. On January 2, 2003, plaintiff submitted to the court a document
entitled "Appeal of Decision/Reason for Upholding Action." Add. at 2 (doc. no. 6
& 7). On January 23, 2003, the district court dismissed plaintiff's amended
complaint with prejudice, stating that "[t]he new paper does not provide any reason
for forestalling the dismissal of that complaint as conditionally ordered by the
Court." Add. at 17. On January 30, 2003, O'Connor filed a timely notice of
appeal. Add. at 2 (doc. no. 9).
O'Connor alleges in her amended complaint that, on or about September 3,
1999, she filed a charge with the EEOC "regarding a matter of religious
discrimination." Add. at 3, ¶ 2. O'Connor alleges that the Commission was
"negligent and grossly negligent in the handling of [her charge]," and that the
Commission's actions violated the equal protection and due process provisions of
the Constitution as well as the first and seventh amendments. Id. at ¶ 10.
2. District Court's Decision.
The district court, relying on 28 U.S.C. § 1915(e)(2), ordered that
O'Connor's claim would be dismissed if she did not show "good cause" within 35
days why it should not be dismissed. Add. at 16. The court stated that persons
who believe that they have suffered employment discrimination, after exhausting
the permissible administrative remedies, have the right to "file a civil action
against the employing agency," but that there is no statutory provision
"permit[ting] the employee to file a suit against the EEOC based on its resolution
of the employee's complaint." Id. at 15. According to the court, the right to sue
one's employer de novo "is the sole remedy for the kind of EEOC misfeasance"
that O'Connor alleges. Id. at 15, citing Francis-Sobel v. U. of Maine, 597 F.2d 15,
16 (1st Cir. 1979). The court also ruled that, because a reasonable cause
determination by the Commission is "nonbinding and nonfinal, investigative and
not adjudicative," the failure to receive such a determination does not represent any
loss that implicates the Due Process Clause. Add. at 16.
SUMMARY OF ARGUMENT
Dismissal of O'Connor's complaint against the EEOC for failure to state a
claim was appropriate because none of the statutes on which O'Connor relies
provides for a cause of action against the EEOC for its handling of her
discrimination charge. Title VII provides neither an express nor an implied cause
of action for alleged mishandling of charges. Moreover, Title VII authorizes suits
only against certain specified entities, including employers, labor unions and
employment agencies. The Commission plainly is not a union or employment
agency, nor was it O'Connor's employer. Thus, the EEOC cannot be sued under
Title VII for its alleged failure to investigate O'Connor's discrimination charge.
Dismissal of O'Connor's complaint against the EEOC can also be upheld
because the district court lacked subject matter jurisdiction. Title VII does not
authorize jurisdiction in cases challenging the EEOC's processing of charges and
thus, O'Connor cannot establish jurisdiction under 28 U.S.C. § 1343. Further,
jurisdiction is lacking in the district court because Congress has not waived
sovereign immunity for the EEOC for actions challenging the Commission's
administrative management of charges. This Court therefore should affirm the
district court's dismissal of O'Connor's complaint.
ARGUMENT
I. THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFF'S
COMPLAINT AGAINST THE COMMISSION UNDER 28 U.S.C. §
1915(E)(2)(b).
This Court reviews de novo a dismissal for failure to state a claim on which
relief may be granted. under 28 U.S.C. § 1915(e)(2)(B).<3> Bradshaw v. Correctional
Medical Services, Inc., 2001 WL 391497, **1 (1st Cir., April 12, 2001)
(unpublished).
O'Connor's claim against the Commission for improper investigation and
disposition of her charge was properly dismissed because she cannot prove any set
of facts in support of this claim which would entitle her to relief from the
Commission. As the district court recognized, this court that has held that charging
parties have no express or implied right of action against the Commission for its
handling of their charges of employment discrimination against a private employer.
Rather, Title VII explicitly provides that charging parties who are dissatisfied with
EEOC's processing and/or disposition of their charge may proceed directly against
the offending employer in court, 42 U.S.C. § 2000e-5. Francis-Sobel v. University
of Maine, 597 F.2d 15, 17-18 (1st Cir.) cert. denied, 444 U.S. 949 (1979). See
also, Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983), cert. denied, 466 U.S. 953
(1984); Stewart v. EEOC, 611 F.2d 679, 682 (7th Cir. 1979); Peavey v.
Polytechnic Inst. of New York, 749 F. Supp. 58, 59 (E.D.N.Y. 1990) (citations
omitted), aff'd, 940 F.2d 628 (2d Cir. 1991). See also 118 Cong. Rec. 7,168 (1972)
(disgruntled charging party may "pursue his or her own remedy . . . where there is
agency inaction, dalliance, dismissal of the charge or unsatisfactory resolution").
Insofar as O'Connor claims that EEOC's disposition of her charge deprived
her of her rights under Title VII, this Court has held that a complainant suffers no
cognizable injury from an agency finding, which is "nonbinding and nonfinal,
investigative and not adjudicative," due to the availability of de novo suit against
the employer. Francis-Sobel, 597 F.2d at 17-18. See also McCottrell v. EEOC,
726 F.2d 350, 351 & n.1 (7th Cir. 1984); Baba v. Japan Travel Bureau Int'l, Inc.,
111 F.3d 2, 4 (2d Cir. 1997); Scheerer v. Rose State College, 950 F.2d 661, 663
(10th Cir. 1991). Cf. Reed v. EEOC, 100 F.3d 957, 1996 WL 636171, at **1 (6th
Cir. Oct. 30, 1996) (same under the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq.); Golyar v. McCausland, 738 F. Supp. 1090, 1095 (W.D. Mich.
1990) (same under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq.).
Congress intended that charging parties dissatisfied with the administrative
resolution of their discrimination complaints be permitted a second opportunity for
vindication through a de novo review in a judicial forum. See 42 U.S.C. § 2000e-
5(f)(3); Occidental Life Insurance Co. v. EEOC, 432 U.S. 355, 365-66 (1977) ("the
provisions [of the Act] allow the person aggrieved to elect to pursue his or her own
remedy under this title in the [federal] courts where there is agency inaction,
dalliance or dismissal of the charge, or unsatisfactory resolution"); Francis-Sobel,
597 F.2d at 17; Archie v. Chicago Truck Drivers, Helpers and Warehouse Workers
Union, 585 F.2d 210, 222 (7th Cir. 1978) (where EEOC allegedly fails to perform
its statutory duties, plaintiff's remedy is to commence suit on his own behalf in
district court, wherein he is entitled to review de novo of his claims). See also
Ward, 719 F.2d at 314; Golyar, 738 F. Supp. at 1094 ("the legislative history of
Title VII provokes the conclusion that Congress did not intend the EEOC to be
subject to a lawsuit by a charging party unhappy with the Commission's
procedures, administrative determinations, or other actions"); Feldstein v. EEOC,
547 F. Supp. 97, 99 (D. Mass. 1982) ("the right to sue de novo was granted as the
complete remedy for EEOC misfeasance"). Therefore, contrary to O'Connor's
assertions, Title VII has not provided her with a private right of action against the
EEOC and it was proper for the district court to dismiss her Title VII claims.
II. THE DISTRICT COURT LACKED SUBJECT MATTER
JURISDICTION OVER PLAINTIFF'S CLAIMS.
Dismissal of O'Connor's claims against the Commission was also
appropriate because the district court had no jurisdiction over the subject matter of
the claim. No statute vests federal courts with jurisdiction over claims against the
Commission for improper processing and/or disposition of a discrimination charge
against a private employer, and Congress has not waived the Commission's
sovereign immunity with respect to such claims.
The United States district courts are courts of limited powers, exercising
only such authority as Congress affords them by statute. Bender v. Williamsport
Area School Dist., 475 U.S. 534, 541 (1986); see Lockerty v. Phillips, 319 U.S.
182, 187 (1943) (courts derive jurisdiction wholly from Congress' Article III
authority to "ordain and establish" inferior courts); Selden Apts. v. United States
Dep't of HUD, 785 F.2d 152, 165 (6th Cir. 1986) (jurisdiction may not exceed
Congressional grant). Thus, for a federal court to hear a particular case, Congress
must have, by statute, vested the court with jurisdiction over the controversy.
Lockerty, 319 U.S. at 187.
Title VII prohibits discrimination, inter alia, on the basis of religion and
permits suits against the employer to redress such injuries, but it affords no
jurisdiction over a charging party's claim that the Commission mishandled the
administrative processing or disposition of any charge she might file against her
employer. The statute has only three jurisdictional provisions. See 42 U.S.C. §§
2000e-5(f) (suits by EEOC or charging party against private sector employer and
by Attorney General or charging party against state or local governmental
employer); 2000e-6 ("pattern and practice" suits by EEOC); 2000e-16 (suits by
federal employees against federal governmental employer). None of these
provisions authorizes the federal courts to hear claims against the Commission
where, as here, there is no employer-employee relationship between the plaintiff
and the Commission, and the Commission is not itself charged with employment
discrimination. Evans v. C & P Tel. Co., 30 FEP Cases (BNA) 1814, 1815 (D.
Md. 1981) (no subject matter jurisdiction under Title VII against EEOC for charge
mishandling).
Jurisdiction over this claim is also lacking because Congress has not waived
the Commission's sovereign immunity from suits for monetary damages sought in
connection with the Commission's processing or disposition of discrimination
charges. It is well established that the United States and its agencies are immune
from suit except where they have consented by statute to be sued. United States v.
Mitchell, 463 U.S. 206, 212 (1983). Waiver of sovereign immunity cannot be
implied; it must be "'unequivocally expressed'" in a statute and, where expressed,
strictly construed in favor of the government. United States v. Nordic Village,
Inc., 503 U.S. 30, 33-34 (1992) (quoting United States v. King, 395 U.S. 1, 4
(1969)); see also United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992).
Moreover, the party attempting to sue the United States or a federal agency bears
the burden of pointing to the statutory provision containing the waiver. Holloman
v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984);
Cole v. United States, 657 F.2d 107, 109 (7th Cir.), cert. denied, 454 U.S. 1083
(1981). Absent an express waiver of sovereign immunity, the federal courts lack
subject matter jurisdiction over any attempted suit against an agency of the United
States. Mitchell, 463 U.S. at 212. Since there has been no waiver of immunity
with respect to claims like O'Connor's, the Commission remains immune and there
is no federal subject matter jurisdiction over such claims. Accordingly, the
dismissal of O'Connor's claim against the Commission was proper and should be
affirmed.
CONCLUSION
For the foregoing reasons, the district court's order dismissing this
complaint should be affirmed.
Respectfully submitted,
NICHOLAS M. INZEO
Acting Deputy General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
John F. Suhre
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street N.W., Room 7040
Washington, D.C. 20507
(202) 663-4716
Certificate of Compliance With Rule 32(a)
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 2280 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii)
2. 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 this brief has
been prepared in a proportionally spaced typeface using Wordperfect 9 in size 14
Times New Roman.
Attorney for Equal Employment Opportunity Commission, Defendant-Appellee
Dated:
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief were mailed, first
class, on May 30, 2003, to the following:
Carolyn E. O'Connor
24 Norman Street, Unit 210
Salem, MA 01970
John F. Suhre
Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street N.W., Room 7040
Washington, D.C. 20507
(202) 663-4716
**********************************************************************************
<<FOOTNOTES>>
<1> The docket sheet and other material from the record in this case is contained in
an Addendum at the end of this brief.
<2> The complaint does not name the respondent in the charge at issue, but O’Connor
states in her brief on appeal that Northshore International Insurance Services was the
“respondent of the subject case”. Pl’s Br. at 13.
<3> O’Connor states that the standard of review in this case is “Utmost Good Faith
and Special Diligence.” Br. at 11. The Commission was unable to discover any such
standard of review in this Court or any other.