Opinion
Civil Action No. 3:03-CV-2202-M.
April 14, 2004
FINDINGS, CONCLUSIONS, RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Defendants' Motion to Dismiss and Brief in Support Thereof, filed December 22, 2003, Plaintiff's Response to Defendants' Joint Motion to Dismiss, filed January 12, 2004, and Defendants' Reply Brief in Support of Their Motion to Dismiss, filed January 22, 2004. The preceding filings were referred to the undersigned United States Magistrate Judge for hearing, if necessary, and for submission of proposed findings and recommendations to the District Court pursuant to the Order Referring Motion, filed January 14, 2004. Based on the filings and the applicable law, the Court is of the opinion that Defendants' Motion to Dismiss and Brief in Support Thereof should be GRANTED.
I. BACKGROUND
Laurie Hamlett ("Plaintiff") filed with the Equal Employment Opportunity Commission ("EEOC") three separate complaints against her employer, the Department of Justice ("DOJ"). (Am. Compl. at 1-2.) The EEOC apparently commenced administrative proceedings and appointed an administrative judge to hear Plaintiff's charges. See id. at ¶¶ 6-8. The administrative judge conducted a hearing in August 2002. Id. at ¶ 24. On September 25, 2002, the administrative judge issued a decision in favor of DOJ. See id. at ¶¶ 28-35. The EEOC affirmed the decision on April 29, 2003. See id. at ¶ 2. Plaintiff moved for reconsideration of that order, the EEOC denied her request, and she received the denial on or about June 30, 2003. See id. at ¶ 1.On September 26, 2003, Plaintiff filed this action pro se, alleging that the United States Attorney General John Ashcroft and Cari Dominguez, the Chair of the EEOC, (collectively "Defendants") discriminated against her under Title VII. On October 21, 2003, Plaintiff filed an amended complaint alleging that Defendants engaged in "unlawful practices in violation of the Constitution of the United States, Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, [and] the Administrative Procedure Act." (Am. Compl. at 1.) In particular, Plaintiff alleges that Defendants violated Title VII by using an administrative judge rather than an administrative law judge during the EEOC proceedings. See id. Plaintiff further alleges that DOJ was uncooperative during the EEOC proceedings and that the administrative judge was biased against her. See id.
On December 22, 2003, Defendants filed the instant motion to dismiss Plaintiff's claims for lack of subject matter jurisdiction under FED.R.CIV.P. 12(b)(1) and for failure to state a claim under FED. R. CIV. P. 12(b)(6). Plaintiff responds that it is unlawful for anyone in DOJ to represent the EEOC because DOJ "aided and abetted" the EEOC's violations of law. Plaintiff also argues that Title VII confers subject matter jurisdiction over her claims against Defendants and that she has stated claims for relief under Title VII, the Administrative Procedures Act, and the Equal Pay Act. This matter is now before the Court and ripe for determination.
II. ANALYSIS
A. Lack of Subject Matter JurisdictionDefendants move to dismiss Plaintiff's Title VII claims against the EEOC under Rule 12(b)(1) and 12(b)(6). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)). Considering Rule 12(b)(1) motions first "prevents a court without jurisdiction from prematurely dismissing a case with prejudice." Id. When the court dismisses because the plaintiff lacks subject matter jurisdiction, that dismissal "is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Id.
1. Standard
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges a federal court's subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. See Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The Fifth Circuit recognizes a distinction between a "facial attack" and a "factual attack" upon a complaint's subject matter jurisdiction. See Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998). "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. See id. (citation omitted). However, if the defendant supports the motion with evidence, then the attack is "factual," and "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Regardless of the attack, "[t]he plaintiff constantly bears the burden of proof that jurisdiction does exist." Rodriguez, 992 F. Supp. at 879 ("The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.") (citations omitted). The instant case is a facial attack. Defendants do not support their motion with evidence, but rather argue that the law does not confer subject matter jurisdiction over Plaintiff's Title VII claims. Accordingly, because this is a facial attack, all of Plaintiff's factual allegations will be accepted as true, and the Court will look to whether the amended complaint states a valid basis for subject matter jurisdiction under Title VII. See Williamson, 645 F.2d at 413.
2. Title VII Claims
Plaintiff complains that Defendants violated Title VII by denying her the opportunity to have her employment discrimination claims heard by an administrative law judge. (Compl. at 4) ("In violation of law, the Plaintiff was denied the right to have an Administrative Law Judge, [sic] preside in [sic] her cases to the Plaintiff's obvious extreme prejudice and significant unnecessary expenses."). Plaintiff also alleges that DOJ knew that the EEOC was using an administrative judge, rather than an administrative law judge, but they failed to inform her of that fact. See id. at 3-4. Defendants do not dispute that the EEOC used an administrative judge, rather than an administrative law judge, but they argue that this Court lacks statutory subject matter jurisdiction over Plaintiff's Title VII claims.
Title VII protects against employment discrimination and "provides district courts with three grants of jurisdiction: (1) 42 U.S.C. § 2000e-5(f)(3), granting jurisdiction over actions brought by the EEOC, the Attorney General, and aggrieved employees against non-federal employers; (2) 42 U.S.C. § 2000e-6(b), granting jurisdiction over pattern or practice cases of general importance brought by the Attorney General; and (3) 42 U.S.C. § 2000e-16, granting jurisdiction over suits brought by federal employees against a federal employer." Newsome v. E.E.O.C., 1998 WL 792502, at *2 (N.D. Tex. Nov. 5, 1998).
Plaintiff's claims do not fit within any of the three jurisdictional bases. Instead, Plaintiff is suing the EEOC for its actions as an enforcement agency while adjudicating her charges of employment discrimination. "Nothing in Title VII confers jurisdiction over cases brought by an individual against the EEOC as an enforcement agency." Id. "In fact, the law is clear that Title VII does not provide for a private cause of action against the EEOC by individuals who were not employees of the EEOC," and there is no jurisdiction under Title VII for "cases brought by an individual against the EEOC as an enforcement agency." Newsome, 1998 WL 792502, at *2; Potter v. Reno, 1994 WL 731284, at *2 (D.D.C. Oct. 17, 1994). Indeed, there is no jurisdiction for a federal court to consider "a claim by a federal employee against the EEOC, or any other agency, challenging any aspect of the administrative processes (or any application of that process) by which complaints of discrimination are investigated and resolved." Storey v. Rubin, 976 F. Supp. 1478, 1483 (N.D. Ga. 1997) (dismissing the plaintiff's claims against the EEOC for lack of subject matter jurisdiction under Rule 12(b)(1)). "Congress has not explicitly created a right of action against the EEOC or any other agency based upon the handling of a administrative complaint of discrimination. Further, it is well settled that charging parties do not have an implied remedy against the EEOC or any other agency arising from the handling of a charge or a decision." Id. (citing Gibson v. Missouri Pac. R.R. Co., 579 F.2d 890, 891 (5th Cir. 1978)).
Consequently, Plaintiff may not maintain a cause of action against Defendants under Title VII merely because she is dissatisfied with the manner in which the EEOC resolved her complaint. See Potter, 1994 WL 731284, at *2 (citing Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991) (citing numerous authorities)). Thus, even construing all of Plaintiff's factual and legal allegations in her favor, this Court lacks subject matter jurisdiction over Plaintiff's Title VII claims against Defendants as representatives of the EEOC. Those claims should be dismissed for lack of subject matter jurisdiction. See Newsome, 1998 WL 792502, at *2; see also Potter, 1994 WL 731284, at *2; Storey, 976 F. Supp. at 1483.
B. Failure to State a Claim
Defendants also move to dismiss Plaintiff's claims under Title VII, the Equal Pay Act, and the Administrative Procedures Act under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
1. Standard
"[T]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Lewis v. City of DeSoto, Texas, 2003 WL 292169, at *2 (N.D. Tex. Feb. 6, 2003) (quoting Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat", 372 F.2d 626, 627 (5th Cir. 1967)). "The [district] court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Id. (quoting Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002) (Rule 12(c) decision)). "In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Id. "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. "Thus the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id.
2. Title VII Claims
Assuming, arguendo, that the Court does have subject matter jurisdiction over Plaintiff's Title VII claims, these claims must still be dismissed because Plaintiff's amended complaint fails to state a claim under Title VII. Title VII create causes of action in favor of employees against their employers for acts of discrimination in the workplace. See Storey, 976 F. Supp. at 1483-84 (citing 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 633a). Plaintiff was not an employee of the EEOC at any time relevant to this suit. Thus, Plaintiff cannot state a claim of discrimination against the EEOC under Title VII. See id. (concluding that a non-EEOC employed plaintiff failed to state a claim for discrimination against the EEOC); see also Newsome v. E.E.O.C., 1998 WL 792502, at *3 (dismissing the non-EEOC employed plaintiff's Title VII claims against the EEOC under Rule 12(b)(6) to the extent that the court had subject matter jurisdiction).
3. Equal Pay Act Claims
Plaintiff alleges that Defendants violated the Equal Pay Act. (Am. Compl. at 1.) The Equal Pay Act provides that no "employer" shall unlawfully discriminate in the manner in which it pays its employees. See 29 U.S.C. § 206(d)(1), cited in Sherrod v. AIG Health Management Services, Inc., 2000 WL 140746, at *3 (N.D. Tex. Feb. 4, 2000) ("Under the Equal Pay Act, an employer is prohibited from discriminating `between employees on the basis of sex'"). Plaintiff fails to provide any allegations that the EEOC was her employer and violated the Equal Pay Act. Indeed, the record reflects that DOJ, not the EEOC, was her employer. Plaintiff does not, however, allege any Equal Pay Act violations against DOJ in her amended complaint. The only mention of the Equal Pay Act in Plaintiff's amended complaint is in the context of attacking the administrative judge's alleged failure to consider her equal pay allegations against DOJ. (Am. Compl. at 9.) Accordingly, even construing Plaintiff's allegations in her favor, she can prove no set of facts that would entitle her to relief from Defendants in their capacities as representatives of the EEOC.
4. Administrative Procedures Act Claims
Plaintiff alleges that Defendants violated the Administrative Procedures Act by not using an administrative law judge. (Am. Compl. at 3.) Defendants correctly argue that § 2000e-16(b) of Title VII confers rule-making authority on the EEOC. The EEOC exercised this authority to promulgate a regulation authorizing the use of administrative judges, rather than administrative law judges. See 29 C.F.R. § 1614.109(a) ("When a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing in accordance with this section.") (emphasis added). Plaintiff presents no allegations to contradict the plain language of the regulation allowing for the use of administrative judges, rather than administrative law judges. Accordingly, even construing Plaintiff's allegations in her favor, she can prove no set of facts in support of her Administrative Procedures Act claim that would entitle her to relief from Defendants, and this claim should be dismissed for failure to state a claim. C. Remaining Claims
The only provision of the Administrative Procedures Act that mandates the use of administrative law judges is 5 U.S.C. § 556, which requires the use of an administrative law judge in cases where a hearing is "required by statute" or where a hearing concerns agency rule-making. See 5 U.S.C. § 554 (demanding use of ALJ when hearings are required by statute) and 554 (demanding use of ALJ when hearing concerns agency rule-making). Neither one of these sections pertain to the EEOC's proceedings regarding Plaintiff's employment discrimination charges.
Defendants allege that Plaintiff does not rely on her employment discrimination claims, but rather, only on her claims regarding the EEOC's handling of her complaint. (Mot. at 2.) Plaintiff disputes this claim and directs the Court to pages 1-3 of her Amended Complaint where she incorporates pursuant to FED. R. CIV. P. 10 her June 2, 2003 request for reconsideration of the EEOC's decision and the EEOC's June 25, 2003 denial of that reconsideration as exhibits. (Am. Compl. at 3.)
Plaintiff filed an original complaint and amended complaint in this action, both naming Defendant Dominguez and Defendant Ashcroft as defendants in their official capacities. (Am. Compl. at 2.) As the Attorney General, Defendant Ashcroft is the head of the Department of Justice; thus, he is the only appropriate defendant for claims against either DOJ or the EEOC, an agency within the purview of DOJ. See Hall v. Small Business Admin., 695 F.2d 175, 180 (5th Cir. 1983) (noting that in a "Title VII action against the federal government, `the head of the department, agency, or unit, as appropriate, shall be the defendant.'") (quoting 42 U.S.C. § 2000e-16(c) (1976)); see also Canino v. U.S.E.E.O.C., 707 F.2d 468, 472 (11th Cir. 1983) (affirming district court's dismissal of all defendants except head of EEOC for employee's Title VII claims against EEOC). Plaintiff alleges in her amended complaint that this action is "based upon" her employment discrimination charges against DOJ and Defendants' adjudication of those charges. (Am. Compl. at 1.) Although Plaintiff portends to base this suit upon her employment discrimination claims, she presents no factual or legal allegations regarding employment discrimination against the United States Attorney's office. Rather, Plaintiff's allegations in her original and amended complaints discuss exclusively the EEOC proceedings and allege only that the EEOC's adjudication of her claims violated the law.
A party may abandon a claim if the party fails to sufficiently incorporate, attach, or reallege the claim in an amended pleading. See, e.g., FED. R. CIV. P. 10(c) ("Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985) ("[A]n amended complaint ordinarily supersedes the original and renders it of no legal effect, unless the amended complaint specifically refers to or adopts the earlier pleading."); Stroud v. Meister, 2001 WL 282764, at *9 (N.D. Tex. March 16, 2001) (finding that a pro se plaintiff's amended complaint abandoned a claim presented in the original complaint by failing to reallege it with specificity).
Plaintiff claims that she incorporated her employment discrimination claims against DOJ into her amended complaint pursuant to FED. R. CIV. P. 10 by attaching her June 2, 2003 request for reconsideration of the EEOC's decision and the EEOC's June 25, 2003 denial of that reconsideration as exhibits. While Plaintiff attached her request for reconsideration and the EEOC's denial thereof as exhibits to her original complaint, she did not attach these documents to her amended complaint, even though the amended complaint states that such documents are attached as exhibits and "incorporated herein by reference." (Am. Compl. at 2-3.) Nevertheless, the references in the amended complaint to the attachments appear to indicate that Plaintiff intended to maintain her employment discrimination claims against the United States Attorney's office in this suit.
The Court notes that although Plaintiff is proceeding pro se, she is an attorney who has been licensed by the State of Texas since 1986. While pro se parties are normally accorded more leniency in the construction of their pleadings, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), the Court need not afford a licensed attorney such leniency when the attorney appears pro se. See Harbulak v. Suffolk County, 654 F.2d 194, 198 (2d Cir. 1981) (holding that the plaintiff "is a practicing attorney and, therefore, cannot claim the special consideration which courts customarily grant to pro se parties"); Tindall v. Gibbons, 156 F. Supp.2d 1292, 1294 n. 1 (M.D. Fla. 2001) ("Although the Court generally construes the pleadings of a pro se litigant liberally, because Plaintiff is a practicing attorney, the Court is not required to show him special leniency.") (citation omitted); DeFina v. Latimer, 79 F.R.D. 5, 7 (E.D.N.Y. 1997) ("Plaintiff, proceeding pro se, is an attorney, and the court has a right to expect skillfully drawn pleadings from her."). Accordingly, the Court need not extend the same leniency to Plaintiff that it extends to other pro se parties.
However, because the amended complaint evidences Plaintiff's intent to maintain her employment discrimination claims, she named the proper department head (Ashcroft) as a defendant for her employment discrimination claims, she filed her suit within the thirty-day limitations period, and Plaintiff would be time-barred from filing her employment discrimination claims now, it appears in the interests of justice to provide Plaintiff with an opportunity to amend her complaint to clarify her employment discrimination claims. See Malena v. Richard, 2004 WL 690893, at *2 (N.D. Tex. March 12, 2004) ("The court should also give the plaintiff an opportunity to amend his complaint, rather than dismiss it, if it appears that a more carefully drafted complaint might state a claim upon which relief could be granted.").
III. RECOMMENDATION
For the foregoing reasons, the Court hereby RECOMMENDS that Defendants' Motion to Dismiss and Brief in Support Thereof be GRANTED, Plaintiff's Title VII claims against EEOC be DISMISSED without prejudice for lack of subject matter jurisdiction, or alternatively, with prejudice for failure to state a claim.
The Court further RECOMMENDS that Plaintiff's claims under the Equal Pay Act against the EEOC be DISMISSED with prejudice for failure to state a claim and that Plaintiff's claims under the Administrative Procedures Act be DISMISSED with prejudice for failure to state a claim.
The Court also RECOMMENDS that Plaintiff be granted an opportunity to file an second amended complaint in accordance with the above findings within twenty days from the date of the entry of the District Court's order accepting these findings and recommendations. If Plaintiff fails to timely file an amended complaint, the Court RECOMMENDS that this action be dismissed under FED. R. CIV. P. 41(b).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings and recommendation on all parties by mailing a copy to each of them. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings, legal conclusions, and recommendation of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).