Golyar v. McCausland, K89-82 CA.

• Citation: 738 F. Supp. 1090
• Decision Date: 23 April 1990
• Docket Number: No. K89-82 CA.,K89-82 CA.
• Parties: Phillip L. GOLYAR, Plaintiff, v. Lt. Charles McCAUSLAND, Director, Defense Logistics Agency; William Takasaki, Director of Logistics Data Management; Marian E. Green; David Fisher; Leo Brodsky; Dolores L. Rozzi, Director, Office of Review & Appeals of U.S. Equal Employment Opportunity Commission; U.S. Equal Employment Opportunity Commission, Defendants.
• Court: U.S. District Court — Western District of Michigan

738 F. Supp. 1090

Phillip L. GOLYAR, Plaintiff, v. Lt. Charles McCAUSLAND, Director, Defense Logistics Agency; William Takasaki, Director of Logistics Data Management; Marian E. Green; David Fisher; Leo Brodsky; Dolores L. Rozzi, Director, Office of Review & Appeals of U.S. Equal Employment Opportunity Commission; U.S. Equal Employment Opportunity Commission, Defendants.

No. K89-82 CA.

United States District Court, W.D. Michigan.

April 23, 1990.

Phillip L. Golyar, Battle Creek, Mich., pro se.

Leo Brodsky, Philadelphia, Pa., pro se.

Lairold M. Street, E.E.O.C., Washington, D.C., for E.E.O.C.

OPINION

ENSLEN, District Judge.

This case is currently before the Court on a motion to dismiss filed by defendants U.S. Equal Employment Opportunity Commission and Delores L. Rozzi, Director, Office of Review & Appeals of the Commission ("EEOC" or "defendant").¹ EEOC also requests attorney fees and costs to be paid by plaintiff. The lawsuit here is an employment discrimination action filed in 1989 by pro se plaintiff Phillip Golyar, a former federal employee, against, inter alia, the EEOC and the Defense Logistics Agency, his former employer. The 1989 complaint alleges unlawful discrimination based on race, sex, age, and handicap pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 633a, and the Rehabilitation Act.

DISCUSSION

Background

Plaintiff originally brought a claim against the Defense Department agencies in 1984. This first complaint was eventually dismissed administratively as untimely. Plaintiff then sought review with the EEOC which affirmed the agency's decision. Subsequently, in 1986, plaintiff filed a pro se suit in this Court. See Golyar v. Defense Logistics Agency, No. K86-426 (W.D.Mich.). This multi-defendant lawsuit included the EEOC as a defendant, and alleged race and sex discrimination.² Plaintiff contended that the EEOC denied him the right to file discrimination and wrongful discharge appeals. Complaint, at 2 (Oct. 17, 1986).

In December 1986, EEOC filed a Motion to Dismiss in the K86-426 action before this Court. See Defendant's Brief in Support, Exhibit A (Oct. 2, 1989) (copy of 1986 motion).³ In a March 30, 1987 Opinion and Order, this Court dismissed plaintiff's complaint against EEOC. See id. Exhibit B. In that opinion I observed that "it is clear from the materials in the file that plaintiff Golyar's claim against the EEOC is that it improperly refused to extend the time within which he could file his complaint against the Defense Logistics Agency." Opinion, at 3 (March 30, 1987). I explicitly addressed the propriety of suing the EEOC in that matter, writing, "It is equally clear from the case law ... that `Title VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge.'" Id. (quoting McCottrell v. Equal Employment Opportunity Commission, 726 F.2d 350, 351 (7th Cir.1984) (emphasis added)).⁴ In addition, I noted that a plaintiff's remedy lies in an action against the head of the agency he believes has discriminated against him. Id. (citing McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984)).

In the 1989 lawsuit, the crux of plaintiff's complaint is that his former employer discriminated against him due to his age, sex, race, and handicap. Plaintiff charged that the EEOC "refused to correct or to give me a positive resolution to several employment discrimination charges that I have filed", adding that the director of the EEOC denied him "full and complete investigative rights to his complaints because they don't meet their prima facie criteria."⁵

Motion to Dismiss Standard

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Elliot Co., Inc. v. Caribbean Util. Co., 513 F.2d 1176 (6th Cir.1975). Technically, of course, the 12(b)(6) motion does not attack the merits of the case—it merely challenges the pleader's failure to state a claim properly. 5 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1364, at 340 (Supp.1987). In deciding a 12(b)(6) motion, the court must determine whether plaintiff's complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the complaint at "face value" and construe them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983); Amersbach v. City of Cleveland, 598 F.2d 1033, 1034-35 (6th Cir.1979); Davis H. Elliot Co. v. Caribbean Utilities Co., 513 F.2d 1176 (6th Cir.1975).

The complaint must in essence set forth enough information to outline the elements of a claim or to permit inferences to be drawn that these elements exist. Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); German v. Killeen, 495 F.Supp. 822, 827 (E.D.Mich.1980). Conclusory allegations are not acceptable, however, where no facts are alleged to support the conclusion or where the allegations are contradicted by the facts themselves. Vermilion Foam Products Co. v. General Electric Co., 386 F.Supp. 255 (E.D.Mich. 1974). The court cannot dismiss plaintiff's complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Rule 12(b)(6), 12(b)(1): Title VII, ADEA, Rehabilitation Act Title VII

To begin with, the EEOC is responsible for enforcing Title VII and the ADEA. EEOC regulations forward equal employment goals in federal government by delineating the process by which the EEOC and other agencies are to process complaints of federal employees charging discrimination against the employing agency, here the Defense Logistics Agency. Parts 1613.211 through .240 of the EEOC's regulations governing "Equal Employment Opportunity in the Federal Government," 29 C.F.R. § 1613.211-240 (1988), delineate how other agencies and the EEOC are to process federal employee complaints of alleged discrimination with their individual agencies. After an agency issues a final decision on a complaint, an employee who is dissatisfied with that decision may file an appeal to the EEOC's Office of Review and Appeal ("ORA"). See § 1613.231-.234. If an employee is dissatisfied with the ORA decision, he or she may request that the EEOC reopen and reconsider that decision, see § 1613.235, or may elect to file a civil action against the employing agency in a federal district court. See § 1613.281.

Plaintiff's allegations against the EEOC, in its capacity as an enforcement body, reflect his displeasure with its investigative action and its resolution of several discrimination charges he made against his former employer. I read his complaint broadly, due to his pro se status, and consider him to be arguing that the EEOC action was discriminatory and otherwise improper. As I previously held, however, the EEOC may not be sued for these reasons. Put another way, plaintiff has failed to state a claim upon which relief may be granted.

In his Title VII suit, plaintiff must be able to show a right of action against the EEOC. A plaintiff may do so by demonstrating that Congress granted such an action against a defendant "either expressly or by clear implication." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). The explicit right of actions created under Title VII for individuals who seek a remedy for discrimination are found in §§ 706 and 717. See 42 U.S.C. §§ 2000e-5, 2000e-16. Section 706 permits an individual to file charges of discrimination against the employer (or prospective employer) with the EEOC, and subsequently, to bring a suit against the employer in federal district court.

Federal employees may sue their employing agency under § 717, however, the only proper defendant in such a suit is the head of the employing agency. E.g., Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.) (per curium), cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980). Because defendant was not employed by the EEOC, he has no explicit right here to sue the Commission under Title VII.

It is also true, as defendant argues, that plaintiff Golyar can show no implied remedy under Title VII. Whether a federal statute implicitly authorizes a cause of action may be determined by a finding that the overall statutory scheme is consistent with the inference that Congress intended to create a specific right of action. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-17, 100 S.Ct. 242, 245-46, 62 L.Ed.2d 146 (1979).

There can be no such finding here. Instead, the statutory scheme and legislative history of Title VII are inconsistent with the proposition that Congress intended such an action against the EEOC under these circumstances. Congress created a de novo cause of action against the employer allegedly discriminating where an individual is unsatisfied with the EEOC's resolution of his or her claim. See, e.g., Occidental Life Insurance Co. v. Equal Employment Opportunity Comm'n, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). The Supreme Court in Occidental Life reviewed a relevant part of the legislative history which made it clear that:

The retention of the private right of action ... is designed to make sure that the person aggrieved does not have to endure lengthy delays if the Commission ... does not act with due diligence and speed. Accordingly, 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.⁶

432 U.S. at 365-66, 97 S.Ct. at 2454 ...