Opinion
No. 00 C 5426
January 10, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff, Billy C. Harper, after being discharged from his employment, contacted the Equal Employment Opportunity Commission ("EEOC") with allegations that his discharge was motivated by unlawful age discrimination. The EEOC denied his charge as untimely. Harper opted to file suit against his employer in federal court and obtained $300,000 in damages. Upon settling his claim with his employer, Harper brought a complaint against the several individuals employed by the EEOC for negligently and intentionally refusing to investigate Harper's claim of age discrimination. In response, the EEOC has filed a motion to substitute the United States as a defendant and to dismiss plaintiffs complaint for lack of subject matter jurisdiction and failing to allege a cause of action upon which relief can be granted. On November 14, 2000, this court granted the defendants' motion to substitute the United States as a defendant.
Standard of Review For Motion To Dismiss
A motion to dismiss does not test whether the plaintiff will prevail on the merits, but instead whether the has properly stated a claim for which relief may be granted. Pickrel v. City of Spring field, Ill., 45 F.3d 1115 (7th Cir. 1995). The court must accept as true all of the plaintiffs well-pleaded factual allegations, as well as all reasonable inferences.Id. Thus, the court will dismiss a complaint only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Ledford v. Sullivan, 105 F.3d 354, 357 (7th Cir. 1997) (quoting Hishon v. King Spalding, 467 U.S. 69, 78, 104 S.Ct. 2229, 2232 (1984)). Any ambiguities are construed in favor of the plaintiff. Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995). However, the court need "not strain to find inferences favorable to the defendant which are not apparent on the face of the complaint." Coates v. Illinois State Bd. of Ed., 559 F.2d 445, 447 (7th Cir. 1977).
Analysis
Before this court is defendant United States' motion to dismiss plaintiff Billy C. Harper's ("Harper") complaint for lack of subject matter jurisdiction and failing to allege a cause of action upon which relief can be granted. For the following reasons, the defendant's motion is GRANTED.
A. Count I
With the United States properly substituted as a defendant, count one of plaintiffs complaint, alleging negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., 28 U.S.C. § 1331, 28 U.S.C. § 1343 (3) and 28 U.S.C. § 1346 (b), is dismissed for lack of subject matter jurisdiction because Harper failed to file an administrative claim.
"An action shall not be instituted upon a claim against the United States for money damages . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing" or six months have passed without a decision. 28 U.S.C. § 2675 (a); Mckeil v. United States, 964 F.2d 647, 648 (7th Cir. 1992). The filing of a claim is a jurisdictional prerequisite to maintaining a civil action for damages against the United States under the FTCA. Best Bearings v. United States, 463 F.2d 1177, 1179 (7th Cir, 1972); there can be no waiver of this requirement. See, e.g., Blair v. United States, 552 F.2d 289 (9th Cir. 1977).
Since Harper has not filed an administrative claim with the EEOC and had it denied in writing, Harper may not bring this FTCA lawsuit against the EEOC in district court. McNeil v. United States, 113 S.Ct. 1980 (1993). Count I of the plaintiffs complaint is dismissed for lack of subject matter jurisdiction.
B. Count II
Count II of the plaintiffs complaint, alleging a cause of action underBivens and seeking relief for a deprivation of due process and equal protection by individuals at the EEOC because, is dismissed for failure to state a claim upon which relief may be granted.
It is well-settled law that there is no private right of action by an aggrieved employee against the EEOC. McCottrell v. Equal Employment Opportunity Commission, 726 F.2d 350, 351-352 (7th Cir. 1983); Stewart v. Equal Employment Opportunity Commission, 611 F.2d 679, 683 (7th Cir. 1979); Ward v. Equal Employment Opportunity Commission, 719 F.2d 311, 313 (9th Cir. 1983).
In this case, Harper brought an allegation of discrimination against his employer to the EEOC. The EEOC determined that it was not timely filed. Despite the EEOC's response, Harper brought suit against his employer and obtained a $300,000 recovery. Harper's claim that the inaction of the EEOC caused him to have to bring a lawsuit against his employer is not reviewable by this court. Therefore, Count II of the plaintiffs complaint is dismissed.
Conclusion
For the foregoing reasons, the defendant United States' motion to dismiss the plaintiff Harper's complaint is GRANTED.