United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
O'Briant, a resident of Baltimore, Maryland, alleges
violation of his civil rights, including his rights under the
First, Fifth, and Fourteenth Amendments. He seeks
compensatory damages from Defendants Rhodes, Lichtenberg and
Canote in their official capacities as "employees of the
EEOC, on the grounds that while acting "under the color
of federal authority, [they] failed to properly process and
investigate" his employment discrimination complaint
against "employer Consolidated Container Company"
on September 21, 2014, resulting in dismissal of his
employment discrimination claim on January 5, 2015. ECF No.
1, p. 6. O'Briant does not specify the basis for his
First Amendment claim, but simply states he has a right of
"free speech to complain." ECF No. 1, p. 4. In an
attachment to the Complaint, O'Briant states that he
"exercised his free speech to complain about employment
discrimination, " that the "EEOC has the
responsibility to receive and investigate" such
complaints, and that his First Amendment rights were violated
due to Defendants' failure to investigate. ECF No. 1-1,
p. 4. O'Briant provides no documents related to his EEOC
filed his EEOC complaint against Consolidated Container on
September 21, 2014, alleging the company discriminated
against him in the hiring process. ECF No. 1-1, p. 1.
O'Briant received notice from Intake Supervisor
Lichtenberg on September 26, 2014, informing him that his
complaint had been received and assigned for completion of
the intake process, and that if found eligible, a draft
charge against the company would be prepared. Id.
O'Briant states that EEOC Investigator Canote telephoned
him on December 3, 2014, asking why he failed to respond to
Consolidated Container's request that he take an
employment test on October 10, 2014. At that time, he
informed Canote that because the test was offered after he
filed his EEOC complaint, he "wanted the investigation
process to be completed before making any decisions."
ECF No. 1-1, p. 2. He next received a letter from Canote on
January 5, 2015, notifying him that the investigation was
terminated because he failed to respond to Consolidated
Container's invitation to take a test on October 10,
2014. ECF No. 1-1, p. 2. O'Briant then
waited more than three years before bringing the instant
lawsuit concerning the agency's decision to decline to
draft charges against Consolidated Container.
seeks leave to proceed in forma pauperis. ECF 2. Under 28
U.S.C. § 1915(a)(1), 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. §
l9l5(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).
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)).
Nonetheless, liberal 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, "[t]he district court need
not look beyond the complaint's allegations .... It must
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, for reasons noted herein, his Complaint cannot
courts "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).
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., Ill 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.
couches his civil rights allegations against Defendants as
due process and equal protection violations. Such violations
arise under the Fifth and Fourteenth Amendments to the United
States Constitution. While this Court may have jurisdiction
to hear such claims, see Mitchell v. Equal Emp't
Opportunity Comm'n, 888 F.Supp. 710, 711-13 (E.D.
Pa. 1995), due process does not furnish a basis for
jurisdiction based on the allegations presented here.
"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. U.S.
Equal 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.
First Amendment claim fares no better; O'Briant admits
that he was informed that his EEOC complaint had been
received by the agency and he was notified that it would not
be investigated. Nothing suggests that O'Briant's
"right to free speech to complain about employment
discrimination" (ECF No. 1-1, p. 6) was impeded by that
determination. 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) (citation omitted).
has failed to state a claim upon which relief can be granted
and is subject to summary dismissal. A separate order shall