Sanders v. Lowe's Companies, Inc. et al
Filing
100
ORDER RULING ON REPORT AND RECOMMENDATION accepting 26 Report and Recommendation and dismissing the EEOC from this matter without prejudice and without issuance and service of process. Signed by Honorable J Michelle Childs on 9/26/2016. (asni, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Eric Alan Sanders,
)
)
Plaintiff,
)
v.
)
)
Lowe’s Home Centers, LLC; EEOC of
)
Charlotte, NC; John Hayward; Mike
)
Calzareeta; Doug Ford; Rayvon Irby,
)
)
Defendants.
)
___________________________________ )
Civil Action No. 0:15-cv-02313-JMC
ORDER AND OPINION
Plaintiff Eric Alan Sanders (“Sanders” or “Plaintiff”) filed this action pro se against
Defendants Lowe’s Home Centers, LLC (“Lowe’s”); the EEOC of Charlotte, NC; John
Hayward; Mike Calzareeta; Doug Ford; and Rayvon Irby alleging that he was subjected to
discrimination, retaliation, and a hostile work environment in violation of the Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e–2000e17, and the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213. (ECF No. 16.) Plaintiff also
alleges claims for violation of his civil rights under 42 U.S.C. § 1983 and state law claims for
violation of South Carolina statutory law. (ECF No. 16.)
This matter is before the court pursuant to a Report and Recommendation (ECF No. 26)
issued by United States Magistrate Judge Paige J. Gossett.1
1
On September 21, 2015, the
The court observes that Plaintiff filed a Notice of Appeal (ECF No. 84) of the Order (ECF No.
73) entered by the court on July 20, 2016 (the “July Order”). In the July Order, the court
overruled Plaintiff’s Objections and denied his Appeal/Motion to Vacate (ECF No. 61) an Order
entered by the Magistrate Judge on February 29, 2016. (ECF No. 56.) The court has jurisdiction
to address this pending Report and Recommendation because adjudication of the issue will not
affect the appeal. E.g., Durham School Servs., L.P. v. Gen. Drivers, Warehousemen & Helpers,
Local Union No. 509, No. 2:14-cv-1241-DCN, 2016 WL 1095498, at *2 (D.S.C. Mar. 21, 2016)
(“[N]otwithstanding the filing of a notice of appeal, district courts retain jurisdiction to determine
collateral and ancillary matters that do not affect the questions presented on appeal.”) (citing,
e.g., Langham-Hill Petroleum, Inc. v. S. Fuels Co., 813 F.2d 1327, 1330–31 (4th Cir. 1987)).
Magistrate Judge issued a Report and Recommendation in which she recommended that the
court dismiss Defendant EEOC of Charlotte, NC (“EEOC”) from the matter “without prejudice
and without issuance and service of process.” (Id. at 6.) Plaintiff filed Objections to the
Magistrate Judge’s Report and Recommendation, which Objections are presently before the
court. (ECF No. 33.) For the reasons set forth below, the court ACCEPTS the Magistrate
Judge’s recommendation and DISMISSES the EEOC from this matter.
I.
RELEVANT BACKGROUND OF THE MATTER
On August 13, 2015, Plaintiff filed an Amended Complaint in this action alleging as
follows:
I am also joining as a party the EEOC of Charlotte, NC – a “public entity” as
defined by § 35.104 of Title 28 of the Code of Federal Regulations (42 U.S.C. §
12132 and 28 C.F.R. Part 35); furthermore, the EEOC of Charlotte, NC is a “labor
organization” according to Section 1-13-30(g) of the South Carolina Human
Affairs Law.
I am charging the EEOC of Charlotte, NC with intentional and malicious
professional negligence/discrimination/retaliation/interference/coercion including,
but not limited; refusal to properly investigate these charges, refusal to
acknowledge my charge in writing in a timely manner; failing/refusal to file for
temporary or preliminary relief pending final disposition of the charge to protect
me from irreparable emotional, refusal to produce a right to sue letter with
sufficient detail to proceed in District Court and establish proper jurisdiction;
intentionally failing to provide any form of technical assistance in violation of 42
U.S.C. Section 12206 (Section 507) c(1), § 35.130(a) and § 35.134(a)–(b) of Title
28 of the Code of Federal Regulations.
I am alleging that the EEOC of Charlotte, NC violated these laws primarily due to
the nature of my disabilities (mental) and for complaining, in the past, regarding
the negligence of EEOC employees in handling two previous charges.
I am alleging that I, a qualified individual with a disability, by reason of such
disability, was excluded from participation in, denied the benefits of the services,
programs, activities, of the EEOC of Charlotte, NC a public entity and a labor
organization, and was subjected to discrimination by the subject entity in violation
of 42 U.S.C. § 12132 and Section 1-13-80(B) and (C)(1) of the South Carolina
Human Affairs Law.
(ECF No. 16 at 8 ¶ 39–9 ¶ 42.)
2
In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., the
Magistrate Judge reviewed the allegations against the EEOC and issued the aforementioned
Report and Recommendation on September 21, 2015. (ECF No. 26.) On October 9, 2015,
Plaintiff filed Objections to the Magistrate Judge’s Report and Recommendation. (ECF No. 33.)
II.
JURISDICTION
This court has jurisdiction over Plaintiff’s Title VII claim via 28 U.S.C. § 1331, as it
arises under a law of the United States, and also via 42 U.S.C. § 2000e–5(f)(3), which empowers
district courts to hear claims “brought under” Title VII. Additionally, the court has jurisdiction
over Plaintiff’s ADA claim via 28 U.S.C. § 1331, as the claim arises under a law of the United
States, and also via 42 U.S.C. §§ 12117 & 2000e–5(f)(3), which empower district courts to hear
claims by “person[s] alleging discrimination on the basis of disability.” The court may properly
hear Plaintiff’s state law claims based on supplemental jurisdiction since they are “so related to
claims in the action within such original jurisdiction that . . . it form[s] part of the same case or
controversy . . . .” 28 U.S.C. § 1367(a).
III.
A.
LEGAL STANDARD
The Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court reviews de novo only
those portions of a magistrate judge’s report and recommendation to which specific objections2
are filed, and reviews those portions which are not objected to - including those portions to
2
An objection is specific if it “enables the district judge to focus attention on those issues—
factual and legal—that are at the heart of the parties’ dispute.” One Parcel of Real Prop. Known
As 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)).
3
which only “general and conclusory” objections have been made - for clear error. Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The court may accept,
reject, or modify, in whole or in part, the recommendation of the magistrate judge or recommit
the matter with instructions. See 28 U.S.C. § 636(b)(1).
B.
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the court to liberally construe his
pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those
drafted by attorneys. Haines, 404 U.S. at 520. “The mandated liberal construction means only
that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so.” Mansouri v. Comm’r of Soc. Sec. Admin., C/A No. 8:14-cv02251-JMC, 2015 WL 5009260, at *3 (D.S.C. Aug. 20, 2015) (citing Barnett v. Hargett, 174
F.3d 1128, 1133 (10th Cir. 1999)). Nevertheless, the requirement of liberal construction does
not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a
claim currently cognizable in a federal district court. Weller v. Dep’t of Soc. Servs., 901 F.2d
387, 390–91 (4th Cir. 1990).
IV.
A.
ANALYSIS
The Report and Recommendation
Upon her review, the Magistrate Judge observed that the basis of Plaintiff’s claims
against the EEOC was an alleged mishandling of Plaintiff’s Charge, which position has been
uniformly denied as not actionable. (ECF No. 26 at 4 (citing, e.g., Cetina v. Michelin N. Am.,
4
C/A No. 6:12-2222-HMH-JDA, 2012 WL 5430274, at *3 (D.S.C. Oct. 2, 2012) (“All circuit
courts that have addressed the issue agree that ‘a private-sector employee has no cause of action
against the EEOC for its failure to process a charge of discrimination.’” (quoting Jordan v.
Summers, 205 F.3d 337, 342 (7th Cir. 2000)). Moreover, the Magistrate Judge observed that as
an agency of the United States, the EEOC cannot be sued without consent from the Government
and enjoys immunity from suits for damages at common law. (ECF No. 26 at 5 (citing, e.g.,
Global Mail Ltd. v. U.S. Postal Serv., 142 F.3d 208, 210 (4th Cir. 1998) (holding that a federal
governmental entity is entitled to sovereign immunity unless Congress waives that immunity and
consents to suit); Perkins v. United States, 55 F.3d 910, 913 (4th Cir. 1995) (“As sovereign, the
United States enjoys immunity from suits for damages at common law.”)).) As a result of the
foregoing, the Magistrate Judge concluded that Plaintiff’s claims for violation of Title VII and/or
the ADA, and any constitutional and/or state law claims should be summarily dismissed. (ECF
No. 26 at 4–6.)
B.
Plaintiff’s Objections
Plaintiff states both “general” and “specific” Objections to the Magistrate Judge’s Report
and Recommendation.
In his General Objections, Plaintiff argues the Report and
Recommendation should be vacated because: (1) the court has required him to certify his income
on two occasions (ECF No. 33 at 2); and (2) the Magistrate Judge issued the Report while
Plaintiff’s motion to recuse was pending in all of his cases. (Id.) In his Specific Objections,
Plaintiff argues that ADA claims against the EEOC are permissible since the statute uses a
definition of person that includes “individuals, governments, government agencies, . . . [and]
legal representatives.” (ECF No. 33 at 3 (referencing 42 U.S.C. §§ 2000e).) Plaintiff further
argues that the United States did waive its sovereign immunity since the definition of person
5
includes governments and government agencies. (Id. (referencing 42 U.S.C. §§ 2000e).) In
support of his arguments, Plaintiff asserts that he is entitled to proceed with his claims against
the agency because the EEOC expressly refused to investigate his claim and interfered with his
participation in the complaint process. (Id. at 4–6.)
C.
The Court’s Review
Because he has alleged the denial of benefits of the EEOC’s services, programs, and
activities, Plaintiff asserts a violation of Title II of the ADA, which law protects individuals from
exclusion from participation in or the denial of “the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §
12132.
However, for ADA purposes, the federal government is not included within the
definition of a public entity. See 42 U.S.C. § 12131(1) (defining a “public entity” as any state or
local government, instrumentality thereof, or the National Railroad Passenger Corporation); see
Cellular Phone Taskforce v. Fed. Commc’ns Comm’n, 217 F.3d 72, 73 (2d Cir. 2000) (holding
that “Title II of the ADA is not applicable to the federal government.”). Therefore, absent an
explicit waiver of sovereign immunity, the United States, its agencies, and employees are
generally immune from suit. United States v. Mitchell, 445 U.S. 535, 538 (1980); see also Antol
v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). In this regard, Plaintiff cannot sue the EEOC under
the ADA because the ADA does not contain a waiver of sovereign immunity. E.g., Najee v. Fed.
Bureau of Prisons, C/A No. 2:11cv46, 2012 WL 510308, at *3 (N.D. W. Va. Jan. 18, 2012)
(“The ADA does not contain a waiver of sovereign immunity and thus does not apply to the
federal government.”) (citation omitted); Gray v. United States, 69 Fed. Cl. 95, 102 (U.S. Ct.
Fed. Claims 2005) (holding that “the United States has not waived its sovereign immunity to be
sued under the ADA . . . [and the Court of Federal Claims] has no alternative but to dismiss
6
plaintiff’s ADA claim.”); Whooten v. Bussanich, No. Civ. 4:CV-04-223, 2005 WL 2130016, at
*7 (M.D. Pa. Sept. 2, 2005) (“The ADA does not contain a waiver of sovereign immunity and
thus, does not apply to the federal government.”) (citation omitted). Accordingly, Plaintiff’s
Objection to the Report and Recommendation is without merit and is overruled.
V.
CONCLUSION
For the foregoing reasons, the court DISMISSES the claims in the Amended Complaint
(ECF No. 16) against Defendant EEOC of Charlotte, NC without prejudice and without issuance
and service of process.
The court ACCEPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 26) and incorporates it herein by reference.
IT IS SO ORDERED.
United States District Judge
September 26, 2016
Columbia, South Carolina
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?