O'Briant v. Rhodes et al
MEMORANDUM. Signed by Judge J. Frederick Motz on 4/24/2017. (c/m 4/24/17 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. JFM-17-1050
ROSEMARIE RHODES, Director,
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The basi~~f the instant civil rights action filed by Maryland resident Phillip O'Briant is
best understood in the context of an earlier lawsuit brought in this court, 0 'Briant v. Atlas
Container Corp., Civil Action No. JFM-16-2616 (D. Md.).
On July 19, 2016, 0' Briant, a
resident of Baltimore, Maryland, filed a fee-paid self-represented complaint against his former
In that complaint, captioned as a claim for damages based on employment
discrimination, O'Briant demonstrated that he prevailed before the Maryland Department of
Labor after applying for unemployment benefits based on wrongful termination. Id., ECF 1.1
O'Briant was ordered to file an amended complaint indicating the steps taken to complete
administrative proceedings before the Equal Employment Opportunity Commission (EEOC) or
the Maryland Human Relations Commission ("HRC"), a prerequisite to filing in federal court,
and to indicate the basis for his discrimination claim (for example, whether he was suing for
employment discrimination on the basis of race, color, religion, sex, national origin, age, or
disability). ECF 2.
O'Briant complied, indicating he sought declaratory and injunctive relief, back pay,
opinion references the docket numbers assigned by the court's electronic docketing system.
"front pay," compensatory and punitive damages, based on racial discrimination and "illegal
ECF 3. O'Briant noted that his application for Maryland unemployment benefits
initially was rejected based on his former employer's
statement that he was fired for gross
On appeal of the denial of unemployment benefits, O'Briant argued that he was
provided no warning or disciplinary action prior to the February 1, 2016 incident that led to
termination, and that he was subjected to cursing on the job.
His employer did not submit
evidence and failed to attend the appeal hearing, and O'Briant
unemployment benefits on appeal. ld.
In his amended complaint, O'Briant also admitted he did not file a Title VII claim with
the EEOC, a prerequisite to filing an action in federal court. ld. Because O'Briant had sufficient
time to file an EEOC claim, his complaint was dismissed without prejudice on September 7,
2016. ECF 4.
Claim Presently Before this Court
In the instant complaint, O'Briant documents that following the September 7, 2016
dismissal, he promptly filed an EEOC complaint against his former employer.
ECF 1 at p. 10;
ECF 1-4. O'Briant alleges that when he called to inquire about the status of the EEOC matter on
September 28, 2016, he was treated with hostility by Monica Jackson. ECF 1 at p. 10. He notes
that his EEOC complaint was dismissed the same day, on the basis that the investigation could
not conclude that federal employment statutes were violated. ECF 1-4 at p. 1. Carol M. Glace
was the investigator, and Rosemarie Rhodes signed the formal dismissal terminating the EEOC
The September 28, 2016 dismissal contained a written Notice of Suit Rights informing
that he had 90 days to file a federal lawsuit based on his claim of race-based
ECF 1-4 at p. 1.
did not pursue his employment
claim against his former employer in this court.
Instead, he expressed his
dissatisfaction with the outcome of his EEOC complaint and actions of agency employees with
whom he interacted in an October 6, 2016, email directed to Jackson.
11 and 26, 2016, 0'Briant requested
but was ignored.
ECF 1-4 at p. 2.
"any and all information
ECF 1-5, ECF 1-6. After receiving no response, he emailed
Jackson and Glace on December 15, complaining that they had denied him an "equal opportunity
to exercise my rights in the complaint process" and that that Jackson acted improperly during the
September 28,2016 phone call. ECF 1 at p. 10; ECF 1-5 to ECF 1-7.
On December 16, 2016, O'Briant received an email from Glace confirming his request
for reconsideration regarding the charge and noting that the reconsideration did not stop the 90day deadline for filing a federal lawsuit.
ECF 1-8. Despite this second notice concerning the
federal filing deadline, O'Briant did not bring an employment discrimination
lawsuit in this
court. Reconsideration of the EEOC findings was denied in a December 22, 2016, letter from
Rhodes. ECF 1-9.
O'Briant now complains that Rhodes "intentionally disregarded my request to appeal the
dismissal of my complaint and showed no respect for the law by ignoring the court order by a
federal judge."z ECF 1 at p. 10. He states that Glace failed to investigate his complaint and none
of the named defendants informed him of his rights and responsibilities in the EEOC process,
thereby depriving him of "life and liberty, without due process of law and the equal protection of
the laws" under the Fourteenth Amendment.
due process rights were intentionally
Id. O'Briant seeks declaratory judgment that his
violated; a permanent
misconstrues this court's September 7, 2016 order in his first lawsuit. The court directed that he,
O'Briant, file an EEOC complaint. Nothing in that order directed that the EEOC make findings in O'Briant's favor
after completing its investigation.
prohibiting unequal practices against aggrieved persons in the EEOC complaint process; an order
requiring defendants to inform aggrieved persons of their rights in the beginning of the EEOC
complaint process, when there is reason to believe a violation of the law was committed; an
order requiring defendants to initiate and implement systems to ensure that black employees,
male or female, be treated in a non-discriminatory
manner; and compensatory
damages in an amount not less than $75,000.00. Id. at p. 11.
Standard of Review
seeks leave to proceed in forma pauperis.
Under 28 U.S.C.
1915(a)(l), an indigent litigant may commence an action in federal court without prepaying the
filing fee. To guard against possible abuses of this privilege, the statute requires a district court
to dismiss any claim that is frivolous or malicious, or fails to state a claim on which relief may be
granted. See 28 U.S.c.
1915(e)(2)(B)(i) and (ii). In this context, this court is mindful of its
obligation to liberally construe the pleadings of pro se litigants. See Erickson v. Pardus, 551 U.S.
89, 94 (2007).
In evaluating a pro se complaint, a plaintiffs allegations are assumed to be true. Id. at 93
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
construction does not mean that a court can ignore a clear failure in the pleading to allege facts
which set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir.
1990); see also Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (stating a
district court may not "conjure up questions never squarely presented.").
In making this
determination, A(tJhe district court need not look beyond the complaint's allegations ....
hold the pro se complaint to less stringent standards than pleadings drafted by attorneys and must
read the complaint liberally.@ White v. White, 886 F. 2d 721, 722-723 (4th Cir. 1989). The court
will grant O'Briant's
motion for in forma pauperis status. Nonetheless, his complaint cannot
Federal courts are courts of limited jurisdiction and "may not exercise jurisdiction absent
a statutory basis," Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005), and
"have an independent obligation to determine whether subject-matter jurisdiction exists, even
when no party challenges it." Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). A court is to
presume that a case lies outside its limited jurisdiction unless and until jurisdiction has been
shown to be proper. United States v. Poole, 531 F.3d 263,274 (4th Cir. 2008) (citing Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)).
Title VII of the Civil Rights Act of 1964 does not confer federal jurisdiction over suits
against the EEOC when the plaintiff alleges discrimination by third parties. See 42 U.S.C.
2000e-2000e-17 (2012); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 6 (2d Cir. 1997)
(Title VII does not rise to a cause of action against the EEOC "for claims that the EEOC failed to
properly investigate or process an employment discrimination charge"). Thus, Title VII does not
provide this court with jurisdiction over O'Briant's claims.
O'Briant couches his civil rights allegations against defendants as due process and equal
Such violations arise under the Fifth and Fourteenth Amendments to the
United States Constitution.
While this court may have jurisdiction to hear such claims, due
process does not furnish a basis for these allegations. See Mitchell v. Equal Emp't Opportunity
Comm 'n, 888 F.Supp. 710, 711-13 (E.D. Pa. 1995). "An agency's less than useful attempts to
bestow a benefit provided by Congress" does not arise to a violation of due process under the
Fifth or Fourteenth Amendments. See Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir.
1979) (disposing of a complaint against the EEOC on a Rule 12(b)(6) motion). Because an
EEOC determination is appealable to the U.S. District Court, a plaintiff whose claim the EEOC
denied still has a vital federal remedy. See Georator Corp. v. Equal Emp't Opportunity Comm 'n,
592 F.2d 765, 769 (4th Cir. 1979) ("When the preliminary determination is without legal effect
in and of itself, due process will be satisfied if there is an opportunity to be heard before any final
order of the agency becomes effective."); Connor v.
Emp't Opportunity Comm 'n, 736
F.Supp. 570, 573 (D. N.J. 1990) (same); Mitchell, 888 F.Supp. at 713 (same). Thus, an EEOC
denial cannot amount to a deprivation of due process, and a complaint characterized as such fails
to state a claim.
Further, O'Briant does not allege that the EEOC treated his claim differently than similarly
situated individuals in violation of his right to equal protection.
See Mitchell, 888 F.Supp. at
713 (dismissing equal protection claim where plaintiff failed to allege that EEOC treated his
claim any differently than it treats those of other similarly situated complainants)
omitted). Thus, O'Briant has failed to state a claim upon which relief can be granted.
To the extent that O'Briant sues defendants in their individual capacities, his allegations
against defendants typically would require a Bivenl
analysis. This analysis is not needed here, as
complaint does not allege actionable constitutional
violations and is subject to
A separate order shall be entered in accordance with this opinion.
United States District Judge
3 See Bivens v. Six Unknown Named Agents a/the Fed. Bureau a/Narcotics,
403 U.S. 388 (1971).
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