Mora v. Barnhart et al

Filing 16

ORDER granting 12 Defendant's Motion to Dismiss Party by Judge James L. Robart.(MD, mailed copy of order to pltf)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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OLIVIA MORA,

CASE NO. C12-2215JLR
Plaintiff,

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v.

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ROBERT J. BARNHART, et al.,

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ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

Defendants.

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I.

INTRODUCTION

Before the court is the United States Equal Employment Opportunity

17 Commission’s (“EEOC”) motion to dismiss Plaintiff Olivia Mora’s 42 U.S.C. § 1983
18 complaint alleging violations of her rights under the Rehabilitation Act of 1973 and the
19 Americans with Disabilities Act of 1990. (Mot. (Dkt. # 12); Compl. (Dkt. # 1).) The
20 EEOC filed this motion on behalf of Defendant Robert J. Barnhart, Director, Compliance
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ORDER- 1

1 & Control Division, Office of Federal Operations, EEOC. 1 (Mot. at 3.) This is an
2 employment discrimination case arising from Ms. Mora’s application for employment
3 with the United States Department of Commerce, Bureau of Census (“Census Bureau”).
4 (Mora Stmt (Dkt. # 14) at 1.) In 2009, Ms. Mora applied to work for the Census
5 Bureau’s Seattle Local Census Office, but she was denied employment after failing the
6 pre-employment examination. (Id.) Ms. Mora alleges that the Census Bureau
7 discriminated against her based on her disability by denying her request for a proctor to
8 administer the examination. (Id.)
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At some point before the present case, the EEOC adjudicated Ms. Mora’s claim

10 against the Census Bureau. (Id.; Mot. at 4.) On December 19, 2012, Ms. Mora filed her
11 complaint against several named employees of the Census Bureau and the EEOC,
12 including Mr. Barnhart. (See generally Compl.) In her complaint, Ms. Mora alleges
13 violations of her civil rights but does not describe specific actions taken by the EEOC or
14 its employees. (Id. at 9; Mora Stmt at 1.) The EEOC filed its motion to dismiss Ms.
15 Mora’s complaint for lack of subject matter jurisdiction and failure to state a claim upon
16 which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and
17 12(b)(6), respectively. (Mot. at 4, 6.) The court has considered the parties’ submissions
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Ms. Mora appears to bring this suit against Defendant Barnhart in his official capacity.
(See Compl. Civil Cover Sheet (Dkt. # 1-1).) For clarity, the court assumes without deciding that
20 this is a case against Mr. Barnhart in his official capacity and refers to Defendant Barnhart
throughout this order as “EEOC.” See Kentucky v. Graham, 473 U.S. 159, 166 (1985)
21 (concluding that a suit against a government employee in his or her official capacity is the same
as a suit against the government entity employing that person). The court’s analysis applies
equally to government employees sued in their official and individual capacities unless otherwise
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ORDER- 2

1 filed in support of and opposition to the motion, and the applicable law. For the reasons
2 stated below, the court GRANTS the motion to dismiss Ms. Mora’s claims against the
3 EEOC for failure to state a claim upon which relief can be granted. Although the court
4 makes no determination as to the merits of Ms. Mora’s claims, she cannot proceed
5 against the EEOC or its employees under these circumstances pursuant to 42 U.S.C. §
6 1983 or any other statute.
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II.

BACKGROUND

This is an employment discrimination action for damages brought by Plaintiff Ms.

9 Mora on December 19, 2012. (Compl. at 9; Compl. Civil Cover Sheet (Dkt. # 1-1).) Ms.
10 Mora applied to work for the Census Bureau in February 2009, and informed the Bureau
11 that she would require disability accommodations during the application process.
12 (Compl. at 9.) Specifically, Ms. Mora requested a proctor to help administer the Census
13 Bureau’s pre-employment examination. (Id.) After the Bureau denied her request for a
14 proctor, Ms. Mora took and failed the pre-employment examination. (Mora Stmt. at 1.)
15 The Census Bureau then denied her application for employment. (Id.) Ms. Mora alleges
16 that the Census Bureau violated her rights under the Rehabilitation Act and the
17 Americans with Disabilities Act (“ADA”) by denying her request for a proctor and then
18 denying her employment application. (Id.; Compl. Civil Cover Sheet at 1.)
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ORDER- 3

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At some point, Ms. Mora brought her claims against the Census Bureau before the

2 EEOC. 2 (Mora Stmt. at 1; Mot. at 4.) The court infers from the instant lawsuit against
3 both the Census Bureau and the EEOC that Ms. Mora was dissatisfied with the EEOC’s
4 handling of her claims. Ms. Mora does not challenge any specific actions taken by the
5 EEOC, but does state that she feels the system addressing her complaints “has been
6 unfair and neglectful.” (Mora Stmt. at 1.) Ms. Mora also states that “all of her appeals in
7 this matter have been denied,” presumably by the EEOC. (Id.)
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The EEOC moves to dismiss Ms. Mora’s case against it for lack of subject matter

9 jurisdiction and failure to state a claim. (Mot. at 4, 6.) Specifically, the EEOC alleges
10 that Title VII of the Civil Rights Act of 1964 does not grant subject matter jurisdiction
11 over suits against the EEOC in its enforcement capacity, and that sovereign immunity
12 bars Ms. Mora’s suit against Mr. Barnhart in his official capacity for money damages.
13 (Id. at 4-6.) The EEOC also argues that Ms. Mora has failed to state a claim upon which
14 relief can be granted because Title VII creates no express or implied right of action in this
15 case, and 42 U.S.C. § 1983 does not permit suits against federal employees acting under
16 the color of federal law. (Id. at 6-10.)
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III.

ANALYSIS

18 A.

Legal Standard

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The EEOC moves to dismiss Ms. Mora’s complaint pursuant to Federal Rules of

20 Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and failure
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It is not clear from the record exactly when Ms. Mora filed a complaint with the EEOC

22 against the Census Bureau.
ORDER- 4

1 to state a claim upon which relief can be granted, respectively. (Mot. at 4, 6.) Dismissal
2 under Rule 12(b)(6) may be based on a lack of a cognizable legal theory or the absence of
3 sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police
4 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When evaluating a motion to dismiss, the court
5 accepts all well-pleaded factual allegations as true and draws all reasonable inferences in
6 favor of the plaintiff. Baker v. Riverside Cnty. Office of Educ., 584 F.3d 821, 824 (9th
7 Cir. 2009). However, the complaint “must contain sufficient factual matter, accepted as
8 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
9 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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The court liberally construes pro se pleadings. Hebbe v. Pliler, 627 F.3d 338,

11 341-42 (9th Cir. 2010). Proceeding pro se, Ms. Mora claims violation of her rights
12 pursuant to 42 U.S.C. § 1983. (See generally Compl.) However, plaintiffs alleging
13 employment discrimination in violation of the Rehabilitation Act and the ADA may also
14 have causes of action under Title VII of the Civil Rights Act of 1964. See 29 U.S.C. §
15 794a; 42 U.S.C. § 12117. The court therefore considers Ms. Mora’s claims under both 42
16 U.S.C. § 1983 and Title VII.
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Plaintiff’s Claim Under 42 U.S.C. § 1983

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In order to sustain her 42 U.S.C. § 1983 claims against the EEOC, Ms. Mora must

19 establish that she suffered a violation of her rights protected by federal law and that this
20 violation was proximately caused by the EEOC acting under color of state law. West v.
21 Atkins, 487 U.S. 42, 48 (1988). In other words, § 1983 only provides a remedy against
22 persons acting under the color of state law. Ibrahim v. Dep’t of Homeland Sec., 538 F.3d
ORDER- 5

1 1250, 1257 (9th Cir. 2008). Federal officials acting under federal authority are only
2 liable under § 1983 if they act in concert with state officials to a substantial degree.
3 Cabrera v. Martin, 973 F.2d 735, 742 (9th Cir. 1992).
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In this case, the court finds that the EEOC did not act under color of state law.

5 The EEOC is a federal agency, the officials who allegedly mishandled Ms. Mora’s claims
6 acted under color of federal law, and Ms. Mora alleges no collusion between the EEOC
7 and any state actors. (See generally Compl.; Mora Stmt.) Accordingly, the court
8 dismisses Ms. Mora’s § 1983 claims against the EEOC for failure to state a claim,
9 pursuant to Rule 12(b)(6). See Newsome v. EEOC, No. 3:97-CV-3172-G, 1998 WL
10 792502, at *3 (N.D. Tex. Nov. 5, 1998) (dismissing plaintiff’s 42 U.S.C. § 1983 claim
11 against the EEOC because the “EEOC is a federal agency, and the EEOC officials who
12 investigated, or failed to investigate, [the plaintiff’s] claims were acting under color of
13 federal law”); cf. Humbarger v. EEOC, 196 F. App’x 520, 521 (9th Cir. 2006)
14 (unpublished) (upholding the district court’s dismissal of the plaintiff’s 42 U.S.C. § 1983
15 action against the EEOC because “there is no express or implied cause of action against
16 the EEOC or its employees by the employee of a third party who is unhappy with the
17 EEOC’s process of his claim”).
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Plaintiff’s Claim Under the Rehabilitation Act and the Americans with
Disabilities Act

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Liberally construing her pro se pleadings, the court now examines whether Ms.
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Mora has a cause of action against the EEOC independent from 42 U.S.C. § 1983. Ms.
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Mora alleges violations of her rights under the Rehabilitation Act and the ADA. (Compl.
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ORDER- 6

1 at 9.) Although Ms. Mora cannot proceed with her § 1983 claims against the EEOC, the
2 Rehabilitation Act (specifically 29 U.S.C. § 794a) and the ADA (specifically 42 U.S.C.
3 § 12117) incorporate the enforcement provisions of Title VII of the Civil Rights Act of
4 1964. See Carey v. Johnson, 250 F. App’x 781, 781 (9th Cir. 2007) (unpublished)
5 (noting that the ADA “incorporates the powers, remedies, and procedures of Title VII” of
6 the Civil Rights Act of 1964); Golyar v. McCausland, 738 F. Supp. 1090, 1095-96 (W.D.
7 Mich. 1990) (noting that the Rehabilitation Act “provides that the provisions of § 717 of
8 Title VII of the Civil Rights Act of 1964 shall apply to such a claim”). The court thus
9 examines whether Title VII provides a cause of action against the EEOC under Ms.
10 Mora’s circumstances.
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Title VII empowers the EEOC to bring suit against allegedly discriminating

12 employers. See 42 U.S.C. § 2000e-5. This statute also creates a private cause of action
13 permitting employees to sue their employer if the EEOC does not proceed. Id. In either
14 scenario, the employer is the proper defendant and “only present or former employees of
15 the EEOC (or applicants for employment) who allege an unlawful employment practice
16 committed by the EEOC as an employer may bring a Title VII action against the EEOC.”
17 Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983). Ms. Mora’s complaints are directed
18 at the Census Bureau. (See generally Compl.; Mora Stmt.) She was never employed by
19 the EEOC, never applied for employment at the EEOC, and does not allege any unlawful
20 employment practices committed by the EEOC. (Id.) Ms. Mora thus has no express
21 cause of action against the EEOC under Title VII. Ward, 719 F.2d at 313; see also Smith
22 v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (“Congress has not authorized, either
ORDER- 7

1 expressly or impliedly, a cause of action against the EEOC for the EEOC’s alleged
2 negligence or other malfeasance in processing an employment discrimination charge.”);
3 McCottrell v. EEOC, 726 F.2d 350, 350 (7th Cir. 1984).
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The court also finds that Title VII does not create an implied right of action by Ms.

5 Mora against the EEOC in its enforcement capacity. Courts imply a private right of
6 action under a statute when Congress intended to create this remedy. Alexander v.
7 Sandoval, 532 U.S. 275, 286 (2001) (“The judicial task is to interpret the statute Congress
8 has passed to determine whether it displays an intent to create not just a private right but
9 also a private remedy.”). By enacting Title VII, Congress intended to create a private
10 right of action against the employer—rather than the EEOC—in order to remedy the
11 EEOC’s mishandling of a discrimination charge. Ward, 719 F.2d at 313. In fact, “to
12 imply a cause of action against the EEOC would contradict Title VII’s policy of
13 individual enforcement of equal employment opportunity laws and could dissipate the
14 limited resources of the EEOC in fruitless litigation with charging parties.” Smith, 119 F.
15 3d at 34 (quoting Ward, 719 F.2d at 313). Ms. Mora has no implied cause of action
16 against the EEOC for allegedly mishandling her employment discrimination claim
17 because Title VII’s legislative history “strongly indicated that Congress did not intend to
18 imply a private cause of action against the EEOC.” Ward, 719 F.3d at 313; see also
19 Smith; 119 F.3d at 34; McCottrell, 726 F.2d 351 (concluding that Title VII does not
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ORDER- 8

1 create “an express or implied cause of action against the EEOC to challenge its
2 investigation and processing of a charge”). 3
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For similar reasons, the court also finds that Ms. Mora does not have a private

4 cause of action against the EEOC pursuant to the Administrative Procedure Act (“APA”).
5 Under the APA, “final agency action for which there is no other adequate remedy in a
6 court [is] subject to judicial review.” 5 U.S.C. § 704. Even if the EEOC’s actions in this
7 case constitute “final agency action,” the APA does not provide Ms. Mora a cause of
8 action because the statutory requirement that there be “no other adequate remedy in a
9 court” is not met. Ward, 719 F.2d at 314. As previously explained, Congress intended
10 plaintiffs like Ms. Mora to remedy the EEOC’s alleged mishandling of a discrimination
11 charge by directly suing an employer in federal court. Id. The APA does not provide
12 Ms. Mora with a private cause of action against the EEOC because Congress provided
13 her with an adequate remedy in court: a suit against the Census Bureau for allegedly
14 discriminating based on Ms. Mora’s disability. Id. (quoting Hall v. EEOC, 456 F. Supp.
15 695, 701 (N.D. Cal. 1978)).
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Finally, Ms. Mora does not have an implied right of action against the EEOC or its

17 employees pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of
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The court would not reach a different conclusion if Ms. Mora proceeded against Mr.
20 Barnhart in his individual capacity. “The head of the governmental entity alleged to have
discriminated is the only proper defendant in a suit under Title VII.” Adams v. United States,
21 932 F. Supp. 660, 664 n.3 (E.D. Pa. May 7, 1996) (emphasis added). Mr. Barnhart is not a
proper defendant in this case because Ms. Mora does not allege discrimination by the EEOC, Mr.
Barnhart, or any other EEOC employee, and never sought employment with the EEOC. (See
22 generally Compl.; Mora Stmt.)
ORDER- 9

1 Narcotics, 403 U.S. 388 (1971). A Bivens action exists where the U.S. Constitution itself
2 implies a right of action against federal employees who violate a plaintiff’s constitutional
3 rights while acting under color of federal law. See Wilkie v. Robinson, 551 U.S. 537,
4 549-50 (2007). Courts generally will not imply a Bivens action where there exists an
5 “‘alternative, existing process’ capable of protecting the constitutional interests at stake”
6 because such an alternative constitutes “a convincing reason for the Judicial Branch to
7 refrain from providing a new and freestanding remedy.” Minneci v. Pollard, 132 S. Ct.
8 617, 623 (2012) (quoting Wilkie, 551 U.S. at 550). The court will not imply a Bivens
9 action in this case because Ms. Mora has an adequate remedy for the EEOC’s alleged
10 mishandling of her claims against the Census Bureau: a suit against the Census Bureau
11 itself. See Francis-Sobel v. Univ. of Me., 597 F.2d 15, 18 (1st Cir. 1979) (refusing to
12 imply a Bivens action against the EEOC where the plaintiff employee could pursue an
13 action against the allegedly discriminatory employer under Title VII).
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IV.

CONCLUSION

For all of the reasons stated above, the court GRANTS the EEOC’s motion to

16 dismiss Ms. Mora’s case for failure to state a claim upon which relief can be granted,
17 pursuant to Rule 12(b)(6). 4 Ms. Mora may not proceed with her suit against the EEOC or
18 its employees under 42 U.S.C § 1983 because § 1983 permits suits only against persons
19 acting under the color of state law. Moreover, Ms. Mora has no express or implied cause
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Because the court dismisses Ms. Mora’s case against the EEOC for failure to state a
claim upon which relief can be granted, the court does not address the EEOC’s arguments that
the court should dismiss for lack of subject matter jurisdiction or on sovereign immunity
22 grounds. (See generally Mot.)

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ORDER- 10

1 of action against the EEOC arising from the Rehabilitation Act, the ADA, Title VII of the
2 Civil Rights Act of 1964, or the APA, and does not have an implied Bivens action
3 because in this context Congress specifically intended employees like Ms. Mora to file
4 suit against allegedly discriminating employers rather than the EEOC.
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Dated this 22nd day of May, 2013.

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A

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JAMES L. ROBART
United States District Judge

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ORDER- 11