Newsome v. E.E.O.C.

• Citation: 301 F.3d 227
• Decision Date: 22 April 2002
• Docket Number: No. 01-30817 Summary Calendar.,01-30817 Summary Calendar.
• Parties: Vogel Denise NEWSOME, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Patricia T. Bivins; Marvin L. Hicks; Sharon C. Williams, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

301 F.3d 227

Vogel Denise NEWSOME, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Patricia T. Bivins; Marvin L. Hicks; Sharon C. Williams, Defendants-Appellees.

No. 01-30817 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 22, 2002.

COPYRIGHT MATERIAL OMITTED

Vogel Denise Newsome, Jackson, MS, pro se.

Susan Lisabeth Starr, E.E.O.C., Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:

Vogel Denise Newsome ("Newsome") appeals the district court's dismissal of her complaint against the Equal Employment Opportunity Commission and three of its employees (collectively, "EEOC"), for failure to state a claim upon which relief can be granted and for frivolity. Finding that this appeal is frivolous, we DISMISS the appeal and place Newsome on NOTICE that future frivolous appeals may subject her to sanctions.

I

Newsome was an employee of Christian Health Ministries ("CHM") for approximately one month. CHM fired her, and she filed a charge of discrimination with the EEOC, alleging that she had been discriminated against based on her religion and retaliated against in violation of Title VII of the Civil Rights Act of 1964. The EEOC sent a letter to CHM asking them to respond to the charge. CHM responded to the request by providing documentation that it is a religious organization that is exempt from the religious discrimination provisions of Title VII, pursuant to 42 U.S.C. § 2000e-1(a).¹ In a "Dismissal and Notice of Rights" sent to Newsome, the EEOC checked a box indicating that it was dismissing Newsome's charge because "[t]he Respondent [CHM] employs less than the required number of employees or is not otherwise covered by the statutes." In the Dismissal, the EEOC also notified Newsome that she had a right to bring suit in state or federal court against CHM within ninety days of her receipt of the notice.

Newsome filed a pro se "Writ of Mandamus," which we treat as a petition, in federal district court against the EEOC and three of its employees. She sought to compel them to further investigate her charge, and to enjoin them "from interfering and depriving her of rights under Title VII ... and ... the 14th Amendment to the U.S. Constitution." She alleged that the officials had failed to perform their duties to her and sought review of their actions under the Administrative Procedures Act, 5 U.S.C. § 702. She also alleged that the EEOC and CHM were engaged in a conspiracy to violate her civil rights under 42 U.S.C. § 1985.

The district court granted Newsome's motion to proceed in forma pauperis, and referred the case to a magistrate to handle all pre-trial matters "upon consent of the parties" under 28 U.S.C. § 636(c). The EEOC filed a motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. The district court referred this motion to the magistrate under 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that Newsome's claims be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) ("§ 1915") for frivolity and for failure to state a claim upon which relief could be granted. The district court, "after considering the complaint, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, and the objections to the Magistrate Judge's Report and Recommendation filed by the plaintiff," adopted the magistrate judge's report and recommendation. Newsome then filed a "Motion to Stay Proceedings to Enforce a Judgment; Motion to Amend Judgment; and Motion to Set Aside Judgment," which the district court denied. Newsome timely appealed.

II

In her pro se brief, Newsome argues that this matter was improperly referred to a magistrate judge without her consent. The first order of reference was to a magistrate judge to "handle all pre-trial matters, including trial and pre-trial proceedings upon consent of the parties pursuant to 28 U.S.C. § 636(c)." Neither party objected at the time, though it appears that neither party specifically consented, either. The only action taken under this order of reference was the issuance of a summons to the defendant. After the defendants moved to dismiss for failure to state a claim, the district court referred this motion to a magistrate judge under § 636(b)(1)(B). After the magistrate judge issued her report and recommendations, in Newsome's objections to the magistrate's report and recommendations, Newsome argued that the reference to the magistrate was improperly made without the parties' consent, as required by § 636(c), and raises this argument again on appeal.

The reference to the magistrate of the defendants' motion to dismiss for failure to state a claim was made under § 636(b)(1)(B). The consent of the parties is not required under this section. This reference was not improper. The prior reference under § 636(c) did require the consent of the parties. To the extent that Newsome did not consent to this reference, any error that resulted was harmless. The only action taken under this reference was the issuance of a summons to the defendants, which did not prejudice Newsome in any way.

III

Newsome also sought a writ of mandamus under 28 U.S.C. § 1361 to compel the EEOC to reopen her case, investigate her charge further and ask particular questions. The district court denied this writ, and dismissed the complaint.

Mandamus is awarded only "in the exercise of a sound judicial discretion." Duncan Townsite Co. v. Lane, 245 U.S. 308, 311, 38 S.Ct. 99, 62 L.Ed. 309 (1917). "A district court's decision not to exercise jurisdiction under the mandamus statute for federal officers, 28 U.S.C. § 1361, is a discretionary one," which is reviewed for abuse of discretion. Franchi v. Manbeck, 972 F.2d 1283, 1289 (Fed.Cir.1992).

A writ of mandamus is an "extraordinary remedy." Adams v. Georgia Gulf Corp., 237 F.3d 538, 542 (5th Cir.2001). "Mandamus is not available to review discretionary acts of agency officials." Green v. Heckler, 742 F.2d 237, 241 (5th Cir.1984). Further, in order to be granted a writ of mandamus, "[a] plaintiff must show a clear right to the relief sought, a clear duty by the defendant to do the particular act, and that no other adequate remedy is available." U.S. v. O'Neil, 767 F.2d 1111, 1112 (5th Cir.1985) (quoting Green, 742 F.2d at 241).

Here, although Title VII provides that the EEOC "shall make an investigation" of a charge filed, see 42 U.S.C. § 2000e-5(b), it does not prescribe the manner for doing so. The EEOC did investigate Newsome's charge, though not to her satisfaction. However, "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency." E.E.O.C. v. Keco Industries, Inc., 748 F.2d 1097, 1100 (6th Cir.1984) (citing E.E.O.C. v. St. Anne's Hospital, 664 F.2d 128 (7th Cir.1981); E.E.O.C. v. General Electric Co., 532 F.2d 359 (4th Cir.1976); E.E.O.C. v. Chicago Miniature Lamp Works, 526 F.Supp. 974 (N.D.Ill.1981)). Because the nature and extent of the investigation are discretionary, Newsome does not have a "clear right" to a writ of mandamus.

Newsome also is not entitled to the writ because she has another adequate remedy available, i.e. she could file suit in court against her employer. For these reasons, the district court did not abuse its discretion in denying the writ.

IV

The district court also dismissed Newsome's claims under Title VII, the APA, § 1985, and the Fourteenth Amendment. The court dismissed these claims under § 1915(e)(2)(B)(i) and (ii) for frivolity and failure to state a claim, respectively. We review a determination that a case is frivolous under § 1915(e)(2)(B)(i) for abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). Newsome's in forma pauperis complaint "may be dismissed as frivolous if it lacks an arguable basis in law or fact. A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist." Id. (citations omitted). We review a dismissal for failure to state a claim under § 1915(e)(B)(ii) de novo, applying the same standard used to review a dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Moore v. Carwell, 168 F.3d 234, 236 (5th Cir.1999) (citation omitted). We must assume that the plaintiff's factual allegations are true, and may uphold the dismissal of Newsome's claims only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations. Id. (citations omitted).

First we address Newsome's Title VII claims. Newsome alleges that the EEOC deprived her of her rights under Title VII. To the extent that Newsome is attempting to invoke Title VII as a jurisdictional basis for suing the EEOC, she cannot do so. We have held that Title VII does not confer on a charging party a right of action against the EEOC. See Gibson v. Missouri Pac. R.R., 579 F.2d 890, 891 (5th Cir.1978) ("Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-5 et seq., confers no right of action against the enforcement agency. Nothing done or omitted by EEOC affected [plaintiff's] rights. Their adverse determination could not have precluded, and in fact did not preclude, the present suit by [plaintiff]. The relief sought of further investigation or action by the agency would be meaningless.") Therefore it was proper for the district court to dismiss Newsome's Title VII claims.

Newsome also sought relief under the APA. The APA allows for judicial review of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court...." 5 U.S.C. § 704. The APA defines "agency action" to include "the whole or a part of an agency rule, order, license, sanction, relief, or...