Washington v. EEOC (1st Cir.) Brief as appellee Feb. 21, 2006 No. 05-2844 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________________________ KEITH D. WASHINGTON, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et at., Defendants-Appellees. _________________________________________________ On Appeal from the United States District Court for the District of Massachusetts ________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, CARI DOMINGUEZ, ROBERT SANDERS, AND EDITH KESSLER AS APPELLEES ___________________________________________________ JAMES L. LEE RAYFORD A. FARQUHAR Deputy General Counsel Assistant U.S. Attorney VINCENT J. BLACKWOOD United States Attorney's Office Acting Associate General Counsel 1 Courthouse Way, Suite 9200 CAROLYN L. WHEELER Boston, MA 02210 Assistant General Counsel (617) 748-3100 GAIL S. COLEMAN Attorney for Robert Sanders Equal Employment Opportunity Commission and Edith Kessler 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 Attorneys for EEOC TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii Statement Regarding Oral Argument. . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2 A. Course of Proceedings . . . . . . . . . . . . . . . . .2 B. Statement of Facts . . . . . . . . . . . . . . . . . .3 C. District Court Opinion. . . . . . . . . . . . . . . . .4 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . .4 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 The district court properly dismissed Washington's claims against the EEOC and its employees . . . . . . . . . . . . . . . . . . . . .5 A. Standard of Review. . . . . . . . . . . . . . . . . . .5 B. No law authorizes a charging party to sue the EEOC for its handling of a charge of discrimination . . . . . . . . . . . . .5 C. The individual defendants are entitled to qualified immunity8 D. Washington's tort claims are untimely . . . . . . . . .9 E. Washington cannot fault the EEOC for publicizing stigmatizing information when it was Washington, not the EEOC, who disseminated the EEOC's confidential letter. . . . . . . . . . 10 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Certificate of Service TABLE OF AUTHORITIES Cases Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . .8 Baba v. Japan Travel Bureau, Int'l, 111 F.3d 2 (2d Cir. 1997). .6 Disabled Americans for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60 (1st Cir. 2005). . . . . . . . . .5 FDIC v. Meyer, 510 U.S. 471 (1994) . . . . . . . . . . . . . . .5 Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979) . .6-8 Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . .6-7 Harlow v. Fitzgerald, 457 U.S. 800 (1982). . . . . . . . . . . .8 Malley v. Briggs, 475 U.S. 335 (1986). . . . . . . . . . . . . .8 Malone v. United States, 581 F.2d 582 (6th Cir. 1978). . . . . .7 Mitchell v. Forsyth, 472 U.S. 511 (1985) . . . . . . . . . . . .8 Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . 6, 8 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . . . .6 Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . .8-9 Savard v. R.I., 338 F.3d 23 (1st Cir. 2003). . . . . . . . . . .9 Scheerer v. Rose State Coll., 950 F.2d 661 (10th Cir. 1979). . .6 Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980) . . . .8 Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997). . . . . . . . .6 Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979). . . . . . . . . .6 United States v. Mitchell, 445 U.S. 535 (1980) . . . . . . . . .5 United States v. Testan, 424 U.S. 392 (1975) . . . . . . . . . .5 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) . . . . . . . . . . 6 Statutes Administrative Procedures Act, 5 U.S.C. § 551(13). . . . . . . .8 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1367 . . . . . . . . . . . . . . . . . . . . . . . .1 Federal Torts Claims Act, 28 U.S.C. §§ 2401(b), 2680(a). . .7, 10 Age Discrimination in Employment Act, 29 U.S.C. § 626(d) . . . .6 42 U.S.C. § 1981 . . . . . . . . . . . . . . . . . . . . . . 2, 8 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . .2 42 U.S.C. § 1985 . . . . . . . . . . . . . . . . . . . . . . 2, 8 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1)6 Americans with Disabilities Act, 42 U.S.C. § 12117(a). . . . . .6 Rules and Regulations Fed. R. Civ. P. 12(b). . . . . . . . . . . . . . . . . . . . . .3 29 Fed. Reg. § 1601.22 . . . . . . . . . . . . . . . . . . . . 10 STATEMENT REGARDING ORAL ARGUMENT The Appellees do not request oral argument. No. 05-2844 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _________________________________________ KEITH D. WASHINGTON, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et at., Defendants-Appellees. _________________________________________________ On Appeal from the United States District Court for the District of Massachusetts ________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, CARI DOMINGUEZ, ROBERT SANDERS, AND EDITH KESSLER AS APPELLEES ___________________________________________________ STATEMENT OF JURISDICTION Washington alleged subject matter jurisdiction in the district court under 28 U.S.C. §§ 1331, 1343, and 1367. (R.8, Amended Compl. at 2.) The district court noted that "it appears that this court is without a jurisdictional basis to consider the plaintiff's claims." (App. at 36, R.19, Slip Op. at 1.) The Appellees contend that this holding was correct. See infra at 6-9. On November 7, 2005, the district court dismissed the case and entered final judgment. (App. at 35, R.20, Order.) Washington filed a timely notice of appeal on November 28, 2005, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure. (R.22, Notice of Appeal.) This Court has jurisdiction pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Did the district court correctly dismiss Washington's claims against the EEOC, its chair, its Boston Area director, and one of its investigators in connection with the EEOC's processing of his discrimination charge? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court in favor of defendant EEOC; defendant Cari M. Dominguez, chair of the EEOC sued in her official capacity; defendant Robert L. Sanders, director of the EEOC's Boston Area Office sued in his official and individual capacities; and defendant Edith Kessler, EEOC investigator sued in her official and individual capacities. A. Course of Proceedings Washington, proceeding pro se, filed this action on March 8, 2005. (R.2, Compl.) He filed an amended complaint on June 20, 2005. (R.2, Am. Compl.) The amended complaint stated claims under: (1) the 5th amendment of the U.S. Constitution; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983;<1> (4) negligence; (5) promissory estoppel; (6) intentional infliction of emotional distress; and (7) negligent misrepresentation. (Id.) On July 12, 2005, the EEOC moved to dismiss pursuant to Rules 12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure. (R.10, Motion.) The district court dismissed the complaint on November 7, 2005. (App. at 35, R.20, Order.) B. Statement of Facts Washington, a 58 year old African American, was senior vice president in the Credit Risk Policy Group of State Street Bank & Trust Co. (R.8, Am. Compl. ¶¶ 4, 17.) He was placed on unpaid leave on August 15, 1996, because of "administrative lapses regarding expense accounting," and his employer subsequently accepted his letter of resignation. (Id. ¶¶ 20, 28.) On July 25, 1997, Washington filed an EEOC charge arising from his employment with and separation from State Street Bank & Trust Co. (Id. ¶ 40.) His charge alleged race, age, and disability discrimination in violation of Title VII, the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"). (Id.) The EEOC dismissed this charge on June 4, 1998. (Id. ¶ 54.) When it dismissed his charge and sent him a notice of right to sue, the EEOC mailed Washington a cover letter explaining the reasons for its action. (App. at 38, R.13, Supp. to P's Memo, attachment.) In this cover letter, the EEOC said that Washington's former employer "had no obligation to extend benefits especially to someone whose resignation was requested because of misappropriation of funds." (Id.) Washington now claims that the EEOC defamed him, violated his constitutional rights, and otherwise caused him significant harm by "publish[ing] stigmatizing information regarding the reasons for Plaintiff's involuntary separation from State Street Bank & Trust Co., which is disputed." (R.8, Am. Compl. ¶ 60.) The cover letter to which Washington objects was sent only to him. (App. at 38-39, R.13, Supp. to P's Memo, attachment.) The EEOC sent Washington's employer only a copy of the form dismissing Washington's charge. (App. at 40, R. 13, Supp. to P's Memo, attachment.) C. District Court Opinion The district court dismissed Washington's complaint in its entirety. (App. at 36, R.19, Slip Op.) The court said: "While it appears that this court is without a jurisdictional basis to consider the plaintiff's claims, that the claims are untimely brought, that immunity is available to the defendants, and that the acts complained about do not fall within the scope of the Federal Tort Claims Act, the case law is settled that, as a general proposition, claims such as these are not cognizable on the merits." (Id.) SUMMARY OF ARGUMENT The district court correctly dismissed Washington's claims against the EEOC and its employees in connection with the processing of Washington's employment discrimination charge. A charging party who is dissatisfied with the EEOC's handling of his charge may file a private lawsuit against his employer but may not sue the EEOC. The EEOC's private communications to a charging party about its assessment of his charge do not change this rule. Additionally, the individual defendants have qualified immunity from suit. ARGUMENT The district court properly dismissed Washington's claims against the EEOC and its employees. A. Standard of Review A district court's dismissal for failure to state a claim is reviewed de novo. This Court must take all of the plaintiff's factual allegations to be true and may dismiss only if the facts cannot justify recovery on any cognizable theory of the case. Disabled Americans for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 63 (1st Cir. 2005). B. No law authorizes a charging party to sue the EEOC for its handling of a charge of discrimination. The United States and its agencies cannot be sued unless Congress has expressly waived sovereign immunity by statute. FDIC v. Meyer, 510 U.S. 471, 475 (1994); United States v. Mitchell, 445 U.S. 535, 538 (1980). A statute authorizing such a waiver must specify the particular terms under which the United States consents to being sued. United States v. Testan, 424 U.S. 392, 399 (1975). Thus, for a plaintiff to proceed against the United States, there must be a statute that waives sovereign immunity for the type of claim asserted and that confers jurisdiction on the district court to adjudicate the claim. There is, however, no such statutory provision which waives the EEOC's sovereign immunity for the type of suit that Washington now brings. The district court correctly held that Title VII, the ADA, and the ADEA do not contemplate the possibility of a lawsuit against the EEOC for its handling of a discrimination charge. (App. at 36, R.19, Slip Op. at 1-2.) Under all three statutes, a victim of discrimination must file a charge with the EEOC and give the agency a specified period of time to investigate and to decide whether it will bring suit. Upon the expiration of this period of exclusive EEOC jurisdiction, a charging party who is dissatisfied with the EEOC's handling of his complaint may file his own lawsuit against the entity accused of discrimination. See 42 U.S.C. § 2000e-5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. § 626(d) (ADEA). Congress intended this private right of action to protect a charging party's rights in the face of agency inaction, delay, or mishandling. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 362-66 (1977) (citing legislative history). The statutes do not, either expressly or implicitly, authorize a charging party to sue the EEOC as well. Any implied right of action against the EEOC would not only contravene the policy of individual enforcement of the anti-discrimination laws, but would also "dissipate the limited resources of the EEOC in fruitless litigation with charging parties." Baba v. Japan Travel Bureau, Int'l, 111 F.3d 2, 6 (2d Cir. 1997) (quoting Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983)). For these reasons, this Court and all others to consider the question have held that the federal anti- discrimination laws do not permit a charging party to sue the EEOC in connection with its handling of a charge. See Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979); Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002); Baba, 111 F.3d at 5-6; Smith v. Casellas, 119 F.3d 33, 33-34 (D.C. Cir. 1997); Scheerer v. Rose State Coll., 950 F.2d 661, 662-63 (10th Cir. 1979); Ward, 719 F.2d at 313; Stewart v. EEOC, 611 F.2d 679, 681-82 (7th Cir. 1979); Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir. 1979). Washington attempts to circumvent this well-settled law by pressing claims under the U.S. Constitution, the Federal Torts Claims Act, the Administrative Procedures Act, section 1981, and section 1985. (R.8, Am. Compl. at 1; Appellant's Br. at 4-7.) These claims, too, must fail. Contrary to Washington's assertions, the EEOC's investigative, non- adjudicatory procedures do not implicate any constitutional rights. Francis-Sobel, 597 F.2d at 17-18. Regardless of what the EEOC says in its determination of reasonable cause or in a cover letter to a charging party, a charging party remains free to sue his employer. An adverse determination, therefore, does not represent any constitutional loss. As this Court has recognized, "[W]ere we to find that the right to EEOC assistance is protected by an implied right of action found in the Fifth Amendment, then every federal bureaucrat would be subject to judicial review of the most minute aspects of his responsibilities as they affect members of the public. Such is a task we are neither eager nor constitutionally competent to undertake." Id. at 18. Likewise, Washington's statutory claims are without legal basis. His claim under the Federal Torts Claims Act must fail because the EEOC's processing of an employment discrimination charge falls within the statute's exception for the performance of discretionary functions. See 28 U.S.C. § 2680(a); Malone v. United States, 581 F.2d 582, 584 (6th Cir. 1978). His claim under the Administrative Procedures Act must fail because the EEOC's dismissal of his complaint did not determine his rights or have any legal consequences, and therefore did not qualify as "final agency action." Newsome, 301 F.3d at 232 (citing 5 U.S.C. § 551(13) and Bennett v. Spear, 520 U.S. 154, 177 (1997)). His claim under 42 U.S.C. § 1981 must fail because that statute does not apply to actions taken under color of federal law. 42 U.S.C. § 1981(c). Finally, his claim under 42 U.S.C. § 1985 must fail because he has provided no factual support for the existence of a conspiracy between the EEOC and his former employer. See Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980); Francis-Sobel, 597 F.2d at 17. C. The individual defendants are entitled to qualified immunity. The qualified immunity defense protects government officials if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The defense shields "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). It is not merely a defense to liability; it is also an immunity from suit. Mitchell v. Forsyth, 472 U.S. 511 (1985). It protects government officials not only from adverse judgments, but also from discovery, trial, and other burdens of protracted litigation, id. at 515, which can be "peculiarly disruptive of effective government." Harlow, 457 U.S. at 817. Consequently, qualified immunity should be determined "at the earliest possible stage of litigation." Saucier v. Katz, 533 U.S. 194, 201 (2001) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)); Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). Claims of qualified immunity require a two-step analysis. First, the court must consider whether the facts, taken in the light most favorable to the plaintiff, show that the officer's conduct violated a constitutional right. Saucier, 533 U.S. at 201. If the allegations do not establish such a violation, the officer is entitled to immunity. Id. If the allegations could make out a constitutional violation, the court must ask whether the right was clearly established, that is, whether "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-02. If an officer makes a reasonable mistake as to what the law requires, the officer is entitled to immunity. Id. at 205.<2> Here, there is no factual support for Washington's contention that the individually named defendants violated his constitutional rights. The cover letter to which Washington objects was sent only to him, (App. at 38-39, R. 13, Supp. to P's memo, attachment; see also infra at 11-12), and there is no factual support for any other alleged violation of Washington's constitutional rights. D. Washington's tort claims are untimely. This appeal concerns the EEOC's June 4, 1998, dismissal of Washington's charge. (R.8, Am. Compl. ¶¶ 40, 54.) Although Washington now seeks to invoke the Federal Tort Claims Act ("FTCA") against the EEOC, he did not file an administrative claim with the EEOC pursuant to that Act until April 2004 (id. at 2), well beyond the FTCA's two year limitation period for filing such claims. 28 U.S.C. § 2401(b). E. Washington cannot fault the EEOC for publicizing stigmatizing information when it was Washington, not the EEOC, who disseminated the EEOC's confidential letter. Washington repeatedly faults the EEOC for "publication of hotly disputed stigmatizing information," (e.g., R.8, Am. Compl. ¶¶ 51, 52, 60), without acknowledging that the EEOC's cover letter was sent only to him. The letter itself is addressed only to Washington and does not indicate the mailing of any copies to anyone, unlike the EEOC's dismissal notice, which plainly states that it is being mailed to Washington with a copy to his former employer. (App. at 38-40, R.13, Supp. to P's Memo, attachments.) Indeed, federal law prohibits the EEOC from publicly disclosing any information related to a charge. 29 Fed. Reg. § 1601.22. To the extent that Washington's letter may have been "publicized," it was publicized by Washington, not by the EEOC. CONCLUSION The district court correctly dismissed Washington's claims against the EEOC and its employees. The law does not authorize a charging party to sue the EEOC in connection with the processing of his charge. For the reasons stated above, this Court should affirm. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ ______________________________ GAIL S. COLEMAN RAYFORD A. FARQUHAR Equal Employment Assistant U.S. Attorney Opportunity Commission United States Attorney's Office 1801 L Street, N.W., Room 7034 1 Courthouse Way, Suite 9200 Washington, D.C. 20507 Boston, MA 02210 (202) 663-4055 (617) 748-3100 Attorneys for EEOC Attorney for Robert Sanders and Edith Kessler CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this brief with the Court this 21st day of February, 2006, by sending, via Federal Express, nine paper copies of the brief plus a 3 ½ computer disk containing the entire contents of the brief in WordPerfect for Windows 9.0. I also certify that I served two copies of the brief this 21st day of February, 2006, by first-class mail, postage pre-paid, to the following counsel and/or litigant of record: Keith D. Washington 6265 Magnolia Ridge Stone Mountain, GA 30087 Rayford A. Farquhar Assistant U.S. Attorney United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 ________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 ******************************************************************************** <> <1> In a subsequent document, Washington claimed that his reference to 42 U.S.C. § 1983 was erroneous and sought to change the citation to 42 U.S.C. § 1985. (R.12, Memo in Opposition at 2.) <2> This Court recently cast the qualified immunity analysis as a “three-part algorithm.” Savard v. R.I., 338 F.3d 23, 27 (1st Cir. 2003). It described the threshold question as whether plaintiff has established a constitutional violation, the second question as whether the law was clearly established at the time of the constitutional violation, and the third question as whether a reasonable official would have understood that the conduct at issue contravened the clearly established law. Id. Whether viewed as a two or three part analysis, the substance of the analysis is identical.