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O'Briant v. Rhodes

United States District Court, D. Maryland

March 29, 2018





         Phillip 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 action.[1]

         Complaint Allegations

         O'Briant 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.[2] 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.

         Standard of Review

         O'Briant 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).

         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)). 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 proceed.


         Federal 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).

         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., 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.

         O'Briant 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.

         O'Briant's 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).

         O'Briant has failed to state a claim upon which relief can be granted and is subject to summary dismissal. A separate order shall ...

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