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MITCHELL v. EEOC

June 13, 1995

KENNETH MITCHELL, Plaintiff,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.



The opinion of the court was delivered by: ANITA B. BRODY

 Anita B. Brody, J.

 June 13, 1995

 Defendant, Equal Employment Opportunity Commission ("EEOC"), moves pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss plaintiff's pro se complaint for lack of subject matter jurisdiction and for failure to state a claim. For the reasons set forth below, I conclude that plaintiff's complaint must be dismissed.

 I. BACKGROUND

 The EEOC interpreted plaintiff's charge against Local 77 to plead violations of Title VII and, finding no violation of that statute, dismissed the charge, thereby permitting plaintiff to sue in federal court. But plaintiff chose not to sue Local 77 or some other responsible third party. Instead, he commenced this action against the EEOC itself, contending that the EEOC erroneously applied Title VII to his underlying charge against Local 77 when Local 77 clearly did not meet Title VII's statutory definition of plaintiff's "employer." Compl.; Def.'s Mem. in Support of Mot. to Dismiss at 1. The EEOC now moves to dismiss plaintiff's complaint.

 II. DISCUSSION

 The EEOC contends that I lack subject matter jurisdiction over this action because the jurisdictional provisions of Title VII confer jurisdiction only over suits against a discriminating private or public employer, which the EEOC is concededly not here. See 42 U.S.C. §§ 2000e-5(f)(3), 2000e-6(b), 2000e-16. While the EEOC cites no authority directly on point, my research discloses that at least one court has adopted this very reasoning. See Golyar v. McCausland, 738 F. Supp. 1090, 1094 n.8 (W.D. Mich. 1990). Accordingly, to the extent that plaintiff's suit is premised on Title VII, I agree with the EEOC and the analysis in Golyar that there is no subject matter jurisdiction here.

 But as discussed below, plaintiff's complaint could be construed as pleading a claim under the United States Constitution as well as under Title VII. Having thus implicated a federal question beyond Title VII, plaintiff has invoked my subject matter jurisdiction notwithstanding the legal insufficiency of his constitutional claim. See Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1280-81 (3d Cir. 1993) (citing Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946) and Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895 (3d Cir. 1987)). Moreover, there is no suggestion here that this is one of those exceptional cases where a claim is pled frivolously or for the sole purpose of obtaining jurisdiction. Growth Horizons, 983 F.2d at 1280-81. Consequently, I find that I have subject matter jurisdiction here insofar as plaintiff's claim is advanced under the United States Constitution.

 Turning to the EEOC's motion to dismiss for failure to state a claim, I construe plaintiff's pro se complaint with appropriate liberality, asking, under the standard enunciated in Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), whether plaintiff is entitled to relief under any reasonable reading of the complaint. Neptune v. Burlington County College, 1993 U.S. Dist. LEXIS 9064, No. 92 Civ. 5989, 1993 WL 273995, at * 1 (E.D. Pa. June 28, 1993) (citations omitted). In essence, plaintiff here charges the EEOC with mishandling or otherwise improperly disposing of his claim against Local 77. Under no possible reading of the complaint does this state a viable claim against the EEOC.

 The most plausible theory upon which plaintiff could be proceeding is that the EEOC's application of Title VII standards to his underlying discrimination charge against Local 77 amounted to a denial of due process in violation of the Fifth Amendment. The Supreme Court has recognized that government agencies may be liable for due process violations committed in the course of performing their functions if those functions are "adjudicatory." See Hannah v. Larche, 363 U.S. 420, 442, 4 L. Ed. 2d 1307, 80 S. Ct. 1502 (1960) ("When governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process."), reh'g denied, 364 U.S. 855, 5 L. Ed. 2d 79, 81 S. Ct. 33 (1960). But because EEOC determinations are fully appealable to the district court and are thus neither final nor binding, such determinations are not considered "adjudicatory" and "cannot violate due process." Connor v. Equal Employment Opportunity Comm'n, 736 F. Supp. 570, 573 (D.N.J. 1990) (citing Francis-Sobel v. University of Me., 597 F.2d 15, 18 (1st Cir.), cert. denied, 444 U.S. 949, 62 L. Ed. 2d 319, 100 S. Ct. 421 (1979), and Georator Corp. v. Equal Employment Opportunity Comm'n, 592 F.2d 765, 768 (4th Cir. 1979)). Consequently, due process does not furnish a basis for plaintiff's claim here.

 Alternatively, plaintiff might be attempting to allege an equal protection violation of the Fifth Amendment by the EEOC. If so, he has not succeeded on this theory either, as he has not alleged that the EEOC treated his claim any differently than it treats those of other, similarly situated complainants. See Dowling v. Commonwealth of Pa. Liquor Control Bd., No. 88 Civ. 7568, 1992 WL 328840, at * 6 (E.D. Pa. Oct. 27, 1992) (equal protection claim requires proof of purposeful discrimination, which entails demonstration that plaintiff "received 'different treatment from that received by other individuals similarly situated.'") (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)).

 Finally, insofar as plaintiff's complaint might be understood as pleading violations by the EEOC of Title VII itself, that statute, too, fails to support a cause of action here. As courts in this and other circuits have consistently held, Title VII does not permit a complainant such as plaintiff to sue the EEOC over the processing of a charge filed against a third party. See Neptune, 1993 WL 273995, at * 1- * 2 (no explicit or implicit cause of action against EEOC under Title VII based on EEOC's handling of discrimination claims against third party employer); Hall v. Equal Employment Opportunity Comm'n, 1992 U.S. Dist. LEXIS 3384, No. 91 Civ. 7077, 1992 WL 57918, at * 1 (same; collecting cases); Becker v. Sherwin Williams, 717 F. Supp. 288, 294 (D.N.J. 1989) ("Courts that have considered whether the EEOC may be sued as a result of its handling or disposition of a charge have uniformly held that such suits are precluded.") (citations omitted). Thus, ...


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