Volz v. United States Equal Employment Opportunity Commission

Filing 5

MEMORANDUM OPINION. See for complete details. Signed by District Judge M. Hannah Lauck on 12/22/2016. Clerk mailed copy to pro se Plaintiff. (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ANDREW J. VOLZ,
Plaintiff,
V.

Civil Action No. 3:16cv249

UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY

COMMISSION,
Defendant.
MEMORANDUM OPINION

This matter comes before the Court on Defendant United States Equal Employment
Opportunity Commission's (the "EEOC") Motion to Dismiss. (ECF No. 2.) Plaintiff Andrew J.

Volz, proceeding pro se, has not responded to the Motion to Dismiss, and the time to do so has

expired.' The matter is ripe for disposition. The Court dispenses with oral argument because the
materials before it adequately present the facts and legal contentions, and argument would not
aid the decisional process. For the reasons that follow, the Court will grant the Motion to
Dismiss.

I. Procedural and Factual Background

Andrew J. Volz filed a "Petition for Appeal" in the Colonial Heights Circuit Court,

challenging the EEOC's dismissal of his Charge of Discrimination (the "Charge of

' The EEOC provided Volz with appropriate notice pursuant to Roseboro v. Garrison,
528F.2d309,310(4thCir. 1975). (ECF No. 4.)
No federal rule provides for a "petition for appeal" of an EEOC decision. The Court,
nonetheless, will address Volz's claims because "[djistrict courts have a duty to construe pro se
pleadings liberally." Blankenship v. Am. Fed Gov't Employees, No. 3:15cv294, 2016 WL
1276425, at *2 (E.D. Va. Mar. 30, 2016) (citing Bracey v. Buchanan^ 55 F. Supp. 2d 416, 421
(E.D. Va. 1999)).

Discrimination") arising out of his employment at Pizza Hut. (ECF No. 1-1.) The United States

ofAmerica, on behalf of the EEOC, and pursuant to 28 U.S.C. §§ 1442(a)^ and 1446,properly
removed the Petition for Appeal to this Court. (ECF No. 1.) The facts underlying Volz's claim

arise from the Charge of Discrimination, which claimed that: (1) Volz was discriminated against
on the basis of his sex and disability; and, (2) he was retaliated against for protected activity, in
violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., ("Title VII") and the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA").
Volz alleges that he began employment as a driver at Pizza Hut on April 30,2014. Volz
asserts that he informed his "Assistant Management, Crystal Mann," that his doctor
"recommended [he] not do dishes." (Charge of Discrimination 6.) In June 2015, however,

"Assistant Management, Lilian Casey," ordered him "to do dishes knowing [he] had an
accommodation to not wash dishes." {Id.) Volz claims that he only observed men washing
dishes and that "females would not have to wash dishes." {Id.) Volz, however, "was not given a
reason why [he] should wash dishes," nor was he "given a reason why only males would do
dishes." {Id.)
Volz later complained to the Store Manager "about being placed on delivery when [he]

was already at another delivery." {Id.) Subsequently, Volz's "hours were cut and [he] was taken

off the schedule entirely." {Id.) Volz argued to the EEOC that he "was forced to resign and
constructively discharged [from Pizza Hut] because of [his] sex, male, [and] retaliated against

Section 1442(a) provides, in pertinent part, that "[a] civil action or criminal prosecution
that is commenced in a [sjtate court and that is against or directed to [the United States or any
agency thereof] may be removed by them to the district court of the United States for the district
and division embracing the place wherein it is pending." 28 U.S.C. § 1442(a)(1).

^Section 1446 provides the procedure for removing civil actions from a state court.

because of [his] protected activity." {Id.) The EEOC dismissed the Charge of Discrimination,
finding that the information before it did not estabHsh violations of Title VII or the ADA.
11. Analysis

The EEOC seeks dismissal of Volz's action on either of two grounds: (1) for lack of

subject matter jurisdiction under Federal Rule ofCivil Procedure 12(b)(l);^ or, alternatively,
(2) for failure to state a claim upon which relief can be granted under Federal Rule of Civil

Procedure 12(b)(6).^ Ofcourse, ifthe Court lacks subject matter jurisdiction over the alleged
claims, the EEOC's alternative basis for dismissal becomes moot. Harrison v. U.S. Social Sec.

Admin.^'HQ. 3:13cv435, 2014 WL 29042, at *1 (E.D. Va. Jan. 2, 2014). Accordingly, the Court
begins by addressing the EEOC's motion as it pertains to subject matter jurisdiction. Because

neither Title VII nor the ADA authorizes individuals alleging discrimination by a third party to
file suit against the EEOC, the Court must dismiss Volz's Petition for Appeal.
A.

Federal Rule of Civil Procedure 12(^(1) Standard

In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenging the
Court's subject matter jurisdiction, the burden rests with the plaintiff, as the party asserting
jurisdiction, to prove that federal jurisdiction is proper. See Int 7 Longshoremen's

'n v. Va.

^"[A] party may assert the following defense[ ] by motion: (1) lack ofsubject-matter
jurisdiction." Fed. R. Civ. P. 12(b)(1).

^"A motion to dismiss under Rule 12(b)(6) tests the sufficiency ofa complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir.
1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356
(1990)). In considering a motion to dismiss for failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th Cir. 1993); see also Martin^
980 F.2d at 952. This principle applies only to factual allegations, however, and "a court
considering a motion to dismiss can choose to begin by identifying pleadings that, becausethey
are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).

Int'l Terminals, Inc.^9\AV. Supp. 1335, 1338 (E.D.Va. 1996) (citing
Acceptance Corp.,178, 189 (1936);

v. Gen. Motors

v. Bain, 697 F.2d 1213, 1219(4th

Cir. 1982)). A motion to dismiss pursuant to Rule 12(b)(1) can attack subject matterjurisdiction
in two ways. First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting that
the complaint fails to state a claim upon which subject matter jurisdiction can lie. See Int 7
Longshoremen's Ass'n, 914 F. Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a

challenge, a court assumes the truth of the facts alleged by plaintiff, thereby functionally
affording the plaintiff the same procedural protection he or she would receive under Rule
12(b)(6) consideration. See Int'l Longshoremen's

914 F. Supp. at 1338; see also Adams,

697F.2dat 1219.

A Rule 12(b)(1) motion may also challenge the existence of subject matter jurisdiction in
fact, apart from the pleadings. See Richmond, Fredericksburg & Potomac R.R. Co. v, United

States, 945 F.2d 765, 768 (4th Cir. 1991);Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338; see
also Adams, 697 F.2d at 1219. In such a case, because a party challenges the court's "'very
power to hear the case,'" the trial court is free to weigh evidence to determine the existence of
jurisdiction. Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338 (quoting Mortensen v. First Fed.
Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness attaches to

the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits ofjurisdictional claims. See id.; see also Adams, 697
F.2datl219.

If the facts necessary to determine jurisdiction intertwine with those facts central to the
merits of the dispute, the proper course of action is for the court to find that jurisdiction exists

and then to resolve the factual dispute on the merits unless the claim is made solely for the

purpose of obtaining jurisdiction, or is determined to be wholly insubstantial and frivolous. Bell
V. Hood, 327 U.S. 678, 682-83 (1946); United States v. North Carolina, 180 F.3d 574, 580 (4th
Cir. 1999); Adams, 697 F.2d at 1219.

B.

Title VII Does Not Authorize Suit Against the EEOC for Third-Party
Discrimination

Title Vll does not confer subject matter jurisdiction over Volz's Petition for Appeal

because Title VII does not authorize individuals alleging discrimination by a third party to file
suit against the EEOC. Title VII affords no express cause of action against the EEOC.
Title VII grants jurisdiction under three sections, none of which apply here: (1) Section
706(f)(3), 42 U.S.C. § 2000e-5(f)(3); (2) Section 707(b), 42 U.S.C. § 2000e-6(b); and Section
717(c), 42 U.S.C. § 2000e-16(c).
Section 706(f)(3) of Title VII, 42 U.S.C. § 2000e-5(f)(3), authorizes federal district
courts to hear enforcement actions brought by private parties against discriminating employers.

Volz sues the EEOC, not Pizza Hut, the private party that allegedly discriminated against him.
Accordingly, this Court does not have jurisdiction pursuant to Section 706(f)(3), 42 U.S.C.
§ 2000e-5(f)(3).

Section 707(b) of Title VII, 42 U.S.C. § 2000e-6(b), permits federal district courts to hear
cases brought by the EEOC against persons engaged in a pattern or practice of resistance to the
goals of Title VII. This case is not brought by the EEOC against persons engaging in a pattern or
practice of resistance to the goals of Title VII. Volz brings suit against the EEOC. Thus,
Section 707(b), 42 U.S.C. § 2000e-6(b) cannot provide jurisdiction allowing Volz to litigate this
case.

Section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c), grants federal district courts

jurisdiction over claims of employment discrimination brought by federal employees (or

applicants for federal employment) against their federal employer. Volz's claim stems from
private employment. He does not allege that he is a federal employee or an applicant for federal
employment. Therefore, this Court lacks jurisdiction under Section 717(c), 42 U.S.C. §2000e16(c).
Because none of the three jurisdictional provisions in Title VII covers Volz's case, no

express cause of action exists for this Court to recognize. To the extent that, construing his claim

liberally, Volz's Petition for Appeal could be characterized as one brought against the EEOC due
to dissatisfaction with that agency's process or its decision, settled law also makes evident that
Title VII does not provide such an implied cause of action. Georator v. EEOC, 592 F.2d 765,
765 (4th Cir. 1979). In sum, although Title VII authorizes federal district courts to hear cases

against employers. Title VII does not grantjurisdiction over cases against the EEOC for actions
taken by the EEOC in the course of carrying out its enforcement responsibilities.
C.

The ADA Does Not Authorize Suit Against the EEOC for Third-Party
Discrimination

The ADA also does not confer subject matter jurisdiction over Volz's Petition for Appeal
because the ADA does not authorize individuals alleging discrimination by a third party to file
suit against the EEOC. This conclusion governs both an express and an implied cause of action.
Section 107 of the ADA, 42 U.S.C. § 12117, incorporates the powers, remedies, and procedures
of Title VII. Because Title VII does not confer jurisdiction over cases against the EEOC in its
capacity as an enforcement agency, neither does the ADA. Accordingly, the ADA does not

confer subject matterjurisdiction over Volz's Petition for Appeal, and Volz fails to carry his
burden that federal jurisdiction is proper. See Int'I Longshoremen's Ass'n, 914 F. Supp. at 1338.

IIL Conclusion

For the foregoing reasons, the Court will grant the Motion to Dismiss. (ECF No. 2.) The
Court will dismiss the Petition for Appeal, without prejudice, for lack of subject matter
jurisdiction. (ECFNo. 1-1.) However, to the extent Volz believes amendment could cure the

jurisdictional issues requiring dismissal, the Court will grant Volz leave to file an amended
complaint.

An appropriate order will accompany this Memorandum Opinion.

M. HaniM

United States District Judge
Richmond, Virginia
Date: