Dowling v. U.S. Equal Employment Opportunity Commission Denver

Filing 5

ORDER of Dismissal. Complaint and action are dismissed because plaintiff is seeking relief from a defendant who is entitled to immunity. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 6/4/12. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01328-BNB
THERESA L. DOWLING
Plaintiff,
v.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Theresa L. Dowling, filed pro se a Title VII Complaint and a Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff was granted leave
to proceed pursuant to § 1915.
The Court must construe Ms. Dowling’s filings liberally because she is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Ms. Dowling has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss any of Ms.
Dowling’s claims that are frivolous. A legally frivolous claim is one in which the plaintiff
asserts the violation of a legal interest that clearly does not exist or asserts facts that do
not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989).
Pursuant to § 1915(e)(2)(B)(iii), the Court must dismiss any claims in which Ms. Dowling

is seeking monetary relief from a defendant who is immune from such relief. For the
reasons stated below, the Court will dismiss the Complaint pursuant to
§ 1915(e)(2)(B)(i) & (iii).
In the Title VII complaint, Ms. Dowling is suing the Denver Field Office of the
Equal Employment Opportunity Commission (EEOC) for allegedly failing to investigate
charges she has filed. Ms. Dowling alleges that she has filed “various cases with the
EEOC in Denver” and that the EEOC has “refused to investigate because she is already
in federal court.” Complaint at 3. Plaintiff asserts that she is entitled to have the EEOC
represent her in federal court. Plaintiff has checked boxes on the Court’s preprinted
Title VII Complaint form indicating that Defendant discriminated against her on the basis
of “refusal to investigate”. Complaint at 2. However, she fails to provide factual
allegations in support of any claims of employment discrimination.
The EEOC and its Denver Field Office are immune from suit. The law is clear
that neither the United States nor federal administrative agencies can be sued absent
an unequivocal waiver of their sovereign immunity. FDIC v. Meyer, 510 U.S. 471
(1994). Although Congress has waived the federal government’s immunity from suit in
various provisions of Title VII, it has done so only under specific circumstances, most
prominently where the government is the employer. See 42 U.S.C. § 2000e-16(c).
The EEOC likewise may be sued where it acts as an employer. Id.; Darbeau v.
Library of Congress, 453 F. Supp. 2d 168, 170 (D.D.C. 2006). Plaintiff does not allege
that she was an employee of the EEOC and has not identified any other provision in
Title VII that expressly waives the agency’s immunity from a suit challenging the manner
in which it investigates or processes claims of employment discrimination. Numerous
2

courts have held that there is no private right of action against the EEOC for claims that
the EEOC and its officers should be held responsible for failure to investigate
employment-related claims adequately. See Robles v. United States, No. 07-0132-CVW-FJG, 2007 WL 627840, at *2 (W.D. Mo. Feb. 26, 2007) (unpublished) (collecting
cases).
In summary, the only Defendant in this case is immune from suit. See FDIC, 510
U.S. at 471. Therefore, the entire action will be dismissed.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Plaintiff files a notice of appeal she also must pay the full $455
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that the complaint and the action are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(i) and (iii) because Plaintiff is seeking relief from a Defendant
who is entitled to immunity. It is

3

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

4th

day of

June

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

4