Washington v. EEOC (1st Cir.)
Brief as appellee
Feb. 21, 2006
                          No. 05-2844
           _________________________________________
                                
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIRST CIRCUIT
           _________________________________________
                                
KEITH D. WASHINGTON,

     Plaintiff-Appellant,

v.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, et at.,

     Defendants-Appellees.
       _________________________________________________
                                
        On Appeal from the United States District Court
               for the District of Massachusetts
        ________________________________________________
                                
          BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
         OPPORTUNITY COMMISSION, CARI DOMINGUEZ, ROBERT
            SANDERS, AND EDITH KESSLER AS APPELLEES
      ___________________________________________________
                                
JAMES L. LEE                                 RAYFORD A. FARQUHAR
Deputy General Counsel                       Assistant U.S. Attorney
VINCENT J. BLACKWOOD                         United States Attorney's Office
Acting Associate General Counsel             1 Courthouse Way, Suite 9200
CAROLYN L. WHEELER                           Boston, MA 02210
Assistant General Counsel                    (617) 748-3100
GAIL S. COLEMAN                              Attorney for Robert Sanders
Equal Employment Opportunity Commission      and Edith Kessler
1801 L Street, N.W., Room 7034
Washington, D.C. 20507
(202) 663-4055
     Attorneys for EEOC

                       TABLE OF CONTENTS
                                
Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . iv

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1

Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . .2

     A.  Course of Proceedings . . . . . . . . . . . . . . . . .2

     B.   Statement of Facts . . . . . . . . . . . . . . . . . .3

     C.  District Court Opinion. . . . . . . . . . . . . . . . .4

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . .4

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

     The district court properly dismissed Washington's claims against the
     EEOC and its employees . . . . . . . . . . . . . . . . . . . . .5

     A.  Standard of Review. . . . . . . . . . . . . . . . . . .5

     B.  No law authorizes a charging party to sue the EEOC for its
     handling of a charge of discrimination . . . . . . . . . . . . .5

     C.  The individual defendants are entitled to qualified immunity8

     D.  Washington's tort claims are untimely . . . . . . . . .9

     E.  Washington cannot fault the EEOC for publicizing stigmatizing
     information when it was Washington, not the EEOC, who
     disseminated the EEOC's confidential letter. . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Service

                      TABLE OF AUTHORITIES
                                
                             Cases
                                
Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . .8

Baba v. Japan Travel Bureau, Int'l, 111 F.3d 2 (2d Cir. 1997). .6

Disabled Americans for Equal Access, Inc. v. Ferries
del Caribe, Inc., 405 F.3d 60 (1st Cir. 2005). . . . . . . . . .5

FDIC v. Meyer, 510 U.S. 471 (1994) . . . . . . . . . . . . . . .5

Francis-Sobel v. Univ. of Me., 597 F.2d 15 (1st Cir. 1979) . .6-8

Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979) . . . . .6-7

Harlow v. Fitzgerald, 457 U.S. 800 (1982). . . . . . . . . . . .8

Malley v. Briggs, 475 U.S. 335 (1986). . . . . . . . . . . . . .8

Malone v. United States, 581 F.2d 582 (6th Cir. 1978). . . . . .7

Mitchell v. Forsyth, 472 U.S. 511 (1985) . . . . . . . . . . . .8

Newsome v. EEOC, 301 F.3d 227 (5th Cir. 2002). . . . . . . . 6, 8

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . . . .6

Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . .8-9

Savard v. R.I., 338 F.3d 23 (1st Cir. 2003). . . . . . . . . . .9

Scheerer v. Rose State Coll., 950 F.2d 661 (10th Cir. 1979). . .6

Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980) . . . .8

Smith v. Casellas, 119 F.3d 33 (D.C. Cir. 1997). . . . . . . . .6

Stewart v. EEOC, 611 F.2d 679 (7th Cir. 1979). . . . . . . . . .6

United States v. Mitchell, 445 U.S. 535 (1980) . . . . . . . . .5

United States v. Testan, 424 U.S. 392 (1975) . . . . . . . . . .5

Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983) . . . . . . . . . .  6
                                
                                
                            Statutes

Administrative Procedures Act, 5 U.S.C.  551(13). . . . . . . .8

28 U.S.C.  1291 . . . . . . . . . . . . . . . . . . . . . . . .2

28 U.S.C.  1331 . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C.  1343 . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C.  1367 . . . . . . . . . . . . . . . . . . . . . . . .1

Federal Torts Claims Act, 28 U.S.C.  2401(b), 2680(a). . .7, 10

Age Discrimination in Employment Act, 29 U.S.C.  626(d) . . . .6

42 U.S.C.  1981 . . . . . . . . . . . . . . . . . . . . . . 2, 8

42 U.S.C.  1983 . . . . . . . . . . . . . . . . . . . . . . . .2

42 U.S.C.  1985 . . . . . . . . . . . . . . . . . . . . . . 2, 8

Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e-5(f)(1)6

Americans with Disabilities Act, 42 U.S.C.  12117(a). . . . . .6


                      Rules and Regulations

Fed. R. Civ. P. 12(b). . . . . . . . . . . . . . . . . . . . . .3

29 Fed. Reg.  1601.22 . . . . . . . . . . . . . . . . . . . . 10


               STATEMENT REGARDING ORAL ARGUMENT
                                

     The Appellees do not request oral argument.


                          No. 05-2844
           _________________________________________
                                
             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIRST CIRCUIT
           _________________________________________
                                
KEITH D. WASHINGTON,

     Plaintiff-Appellant,

v.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, et at.,

     Defendants-Appellees.
       _________________________________________________
                                
        On Appeal from the United States District Court
               for the District of Massachusetts
        ________________________________________________
                                
          BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
         OPPORTUNITY COMMISSION, CARI DOMINGUEZ, ROBERT
            SANDERS, AND EDITH KESSLER AS APPELLEES
      ___________________________________________________

                                
                                
                   STATEMENT OF JURISDICTION

     Washington alleged subject matter jurisdiction in the district court under 28
U.S.C.  1331, 1343, and 1367.  (R.8, Amended Compl. at 2.)  The district court
noted that "it appears that this court is without a jurisdictional basis to consider the
plaintiff's claims."  (App. at 36, R.19, Slip Op. at 1.)  The Appellees contend that
this holding was correct.  See infra at 6-9.  

     On November 7, 2005, the district court dismissed the case and entered final
judgment.  (App. at 35, R.20, Order.)  Washington filed a timely notice of appeal
on November 28, 2005, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate
Procedure.  (R.22, Notice of Appeal.)  This Court has jurisdiction pursuant to 28
U.S.C.  1291.
                     STATEMENT OF THE ISSUE
     Did the district court correctly dismiss Washington's claims against the
EEOC, its chair, its Boston Area director, and one of its investigators in
connection with the EEOC's processing of his discrimination charge?
                     STATEMENT OF THE CASE
     This is an appeal from a final judgment of the district court in favor of
defendant EEOC; defendant Cari M. Dominguez, chair of the EEOC sued in her
official capacity; defendant Robert L. Sanders, director of the EEOC's Boston
Area Office sued in his official and individual capacities; and defendant Edith
Kessler, EEOC investigator sued in her official and individual capacities.
                   A.  Course of Proceedings
     Washington, proceeding pro se, filed this action on March 8, 2005.  (R.2,
Compl.)  He filed an amended complaint on June 20, 2005.  (R.2, Am. Compl.) 
The amended complaint stated claims under:  (1) the 5th amendment of the U.S.
Constitution; (2) 42 U.S.C.  1981; (3) 42 U.S.C.  1983;<1> (4) negligence; (5)
promissory estoppel; (6) intentional infliction of emotional distress; and (7)
negligent misrepresentation.  (Id.)  On July 12, 2005, the EEOC moved to dismiss
pursuant to Rules 12(b)(1), (5), and (6) of the Federal Rules of Civil Procedure. 
(R.10, Motion.)  The district court dismissed the complaint on November 7, 2005. 
(App. at 35, R.20, Order.)
                     B.  Statement of Facts
     Washington, a 58 year old African American, was senior vice president in
the Credit Risk Policy Group of State Street Bank & Trust Co.  (R.8, Am. Compl.
 4, 17.)  He was placed on unpaid leave on August 15, 1996, because of
"administrative lapses regarding expense accounting," and his employer
subsequently accepted his letter of resignation.  (Id.  20, 28.)  On July 25, 1997,
Washington filed an EEOC charge arising from his employment with and
separation from State Street Bank & Trust Co.  (Id.  40.)  His charge alleged race,
age, and disability discrimination in violation of Title VII, the Age Discrimination
in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"). 
(Id.)  The EEOC dismissed this charge on June 4, 1998.  (Id.  54.)
     When it dismissed his charge and sent him a notice of right to sue, the
EEOC mailed Washington a cover letter explaining the reasons for its action. 
(App. at 38, R.13, Supp. to P's Memo, attachment.)  In this cover letter, the EEOC
said that Washington's former employer "had no obligation to extend benefits
especially to someone whose resignation was requested because of
misappropriation of funds."  (Id.)  Washington now claims that the EEOC defamed
him, violated his constitutional rights, and otherwise caused him significant harm
by "publish[ing] stigmatizing information regarding the reasons for Plaintiff's
involuntary separation from State Street Bank & Trust Co., which is disputed." 
(R.8, Am. Compl.  60.)
     The cover letter to which Washington objects was sent only to him.  (App.
at 38-39, R.13, Supp. to P's Memo, attachment.)  The EEOC sent Washington's
employer only a copy of the form dismissing Washington's charge.  (App. at 40,
R. 13, Supp. to P's Memo, attachment.)
     C.  District Court Opinion
     The district court dismissed Washington's complaint in its entirety.  (App.
at 36, R.19, Slip Op.)  The court said:  "While it appears that this court is without a
jurisdictional basis to consider the plaintiff's claims, that the claims are untimely
brought, that immunity is available to the defendants, and that the acts complained
about do not fall within the scope of the Federal Tort Claims Act, the case law is
settled that, as a general proposition, claims such as these are not cognizable on
the merits."  (Id.)
                      SUMMARY OF ARGUMENT
     The district court correctly dismissed Washington's claims against the
EEOC and its employees in connection with the processing of Washington's
employment discrimination charge.  A charging party who is dissatisfied with the
EEOC's handling of his charge may file a private lawsuit against his employer but
may not sue the EEOC.  The EEOC's private communications to a charging party
about its assessment of his charge do not change this rule.  Additionally, the
individual defendants have qualified immunity from suit.
                                
                            ARGUMENT
     The district court properly dismissed Washington's claims against the
     EEOC and its employees.

     A.   Standard of Review
     A district court's dismissal for failure to state a claim is reviewed de novo. 
This Court must take all of the plaintiff's factual allegations to be true and may
dismiss only if the facts cannot justify recovery on any cognizable theory of the
case.  Disabled Americans for Equal Access, Inc. v. Ferries del Caribe, Inc., 405
F.3d 60, 63 (1st Cir. 2005).  
     B.   No law authorizes a charging party to sue the EEOC for its
          handling of a charge of discrimination.
     The United States and its agencies cannot be sued unless Congress has
expressly waived sovereign immunity by statute.  FDIC v. Meyer, 510 U.S. 471,
475 (1994); United States v. Mitchell, 445 U.S. 535, 538 (1980).  A statute
authorizing such a waiver must specify the particular terms under which the
United States consents to being sued.  United States v. Testan, 424 U.S. 392, 399
(1975).  Thus, for a plaintiff to proceed against the United States, there must be a
statute that waives sovereign immunity for the type of claim asserted and that
confers jurisdiction on the district court to adjudicate the claim.  There is,
however, no such statutory provision which waives the EEOC's sovereign
immunity for the type of suit that Washington now brings.
     The district court correctly held that Title VII, the ADA, and the ADEA do
not contemplate the possibility of a lawsuit against the EEOC for its handling of a
discrimination charge.  (App. at 36, R.19, Slip Op. at 1-2.)  Under all three
statutes, a victim of discrimination must file a charge with the EEOC and give the
agency a specified period of time to investigate and to decide whether it will bring
suit.  Upon the expiration of this period of exclusive EEOC jurisdiction, a
charging party who is dissatisfied with the EEOC's handling of his complaint may
file his own lawsuit against the entity accused of discrimination.  See 42 U.S.C. 
2000e-5(f)(1) (Title VII); 42 U.S.C.  12117(a) (ADA); 29 U.S.C.  626(d)
(ADEA).  Congress intended this private right of action to protect a charging
party's rights in the face of agency inaction, delay, or mishandling.  See
Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 362-66 (1977) (citing legislative
history).  The statutes do not, either expressly or implicitly, authorize a charging
party to sue the EEOC as well.
     Any implied right of action against the EEOC would not only contravene
the policy of individual enforcement of the anti-discrimination laws, but would
also "dissipate the limited resources of the EEOC in fruitless litigation with
charging parties."  Baba v. Japan Travel Bureau, Int'l, 111 F.3d 2, 6 (2d Cir. 1997)
(quoting Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983)).  For these reasons,
this Court and all others to consider the question have held that the federal anti-
discrimination laws do not permit a charging party to sue the EEOC in connection
with its handling of a charge.  See Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17
(1st Cir. 1979); Newsome v. EEOC, 301 F.3d 227, 232 (5th Cir. 2002); Baba, 111
F.3d at 5-6; Smith v. Casellas, 119 F.3d 33, 33-34 (D.C. Cir. 1997); Scheerer v.
Rose State Coll., 950 F.2d 661, 662-63 (10th Cir. 1979); Ward, 719 F.2d at 313;
Stewart v. EEOC, 611 F.2d 679, 681-82 (7th Cir. 1979); Georator Corp. v. EEOC,
592 F.2d 765, 767 (4th Cir. 1979).
     Washington attempts to circumvent this well-settled law by pressing claims
under the U.S. Constitution, the Federal Torts Claims Act, the Administrative
Procedures Act, section 1981, and section 1985.  (R.8, Am. Compl. at 1;
Appellant's Br. at 4-7.)  These claims, too, must fail.  
     Contrary to Washington's assertions, the EEOC's investigative, non-
adjudicatory procedures do not implicate any constitutional rights.  Francis-Sobel,
597 F.2d at 17-18.  Regardless of what the EEOC says in its determination of
reasonable cause or in a cover letter to a charging party, a charging party remains
free to sue his employer.  An adverse determination, therefore, does not represent
any constitutional loss.  As this Court has recognized, "[W]ere we to find that the
right to EEOC assistance is protected by an implied right of action found in the
Fifth Amendment, then every federal bureaucrat would be subject to judicial
review of the most minute aspects of his responsibilities as they affect members of
the public.  Such is a task we are neither eager nor constitutionally competent to
undertake."  Id. at 18.
     Likewise, Washington's statutory claims are without legal basis.  His claim
under the Federal Torts Claims Act must fail because the EEOC's processing of an
employment discrimination charge falls within the statute's exception for the
performance of discretionary functions.  See 28 U.S.C.  2680(a); Malone v.
United States, 581 F.2d 582, 584 (6th Cir. 1978).  His claim under the
Administrative Procedures Act must fail because the EEOC's dismissal of his
complaint did not determine his rights or have any legal consequences, and
therefore did not qualify as "final agency action."  Newsome, 301 F.3d at 232
(citing 5 U.S.C.  551(13) and Bennett v. Spear, 520 U.S. 154, 177 (1997)).  His
claim under 42 U.S.C.  1981 must fail because that statute does not apply to
actions taken under color of federal law.  42 U.S.C.  1981(c).  Finally, his claim
under 42 U.S.C.  1985 must fail because he has provided no factual support for
the existence of a conspiracy between the EEOC and his former employer.  See
Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980); Francis-Sobel, 597 F.2d
at 17.
     C.   The individual defendants are entitled to qualified
          immunity.

     The qualified immunity defense protects government officials if their
actions did not violate "clearly established statutory or constitutional rights of
which a reasonable person would have known."  Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).  The defense shields "all but the plainly incompetent or those
who knowingly violate the law."  Malley v. Briggs, 475 U.S. 335, 341 (1986).  It
is not merely a defense to liability; it is also an immunity from suit.  Mitchell v.
Forsyth, 472 U.S. 511 (1985).  It protects government officials not only from
adverse judgments, but also from discovery, trial, and other burdens of protracted
litigation, id. at 515, which can be "peculiarly disruptive of effective government." 
Harlow, 457 U.S. at 817.  Consequently, qualified immunity should be determined
"at the earliest possible stage of litigation."  Saucier v. Katz, 533 U.S. 194, 201
(2001) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)); Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987).
     Claims of qualified immunity require a two-step analysis.  First, the court
must consider whether the facts, taken in the light most favorable to the plaintiff,
show that the officer's conduct violated a constitutional right.  Saucier, 533 U.S. at
201.  If the allegations do not establish such a violation, the officer is entitled to
immunity.  Id.  If the allegations could make out a constitutional violation, the
court must ask whether the right was clearly established, that is, whether "it would
be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted."  Id. at 201-02.  If an officer makes a reasonable mistake as to what
the law requires, the officer is entitled to immunity.  Id. at 205.<2> 
     Here, there is no factual support for Washington's contention that the
individually named defendants violated his constitutional rights.  The cover letter
to which Washington objects was sent only to him, (App. at 38-39, R. 13, Supp. to
P's memo, attachment; see also infra at 11-12), and there is no factual support for
any other alleged violation of Washington's constitutional rights.  
     D.   Washington's tort claims are untimely.
     This appeal concerns the EEOC's June 4, 1998, dismissal of Washington's
charge.  (R.8, Am. Compl.  40, 54.)  Although Washington now seeks to invoke
the Federal Tort Claims Act ("FTCA") against the EEOC, he did not file an
administrative claim with the EEOC pursuant to that Act until April 2004 (id. at
2), well beyond the FTCA's two year limitation period for filing such claims.  28
U.S.C.  2401(b).  
     E.   Washington cannot fault the EEOC for publicizing stigmatizing
       information when it was Washington, not the EEOC, who disseminated
       the EEOC's confidential letter.

     Washington repeatedly faults the EEOC for "publication of hotly disputed
stigmatizing information," (e.g., R.8, Am. Compl.  51, 52, 60), without
acknowledging that the EEOC's cover letter was sent only to him.  The letter itself
is addressed only to Washington and does not indicate the mailing of any copies to
anyone, unlike the EEOC's dismissal notice, which plainly states that it is being
mailed to Washington with a copy to his former employer.  (App. at 38-40, R.13,
Supp. to P's Memo, attachments.)  Indeed, federal law prohibits the EEOC from
publicly disclosing any information related to a charge.  29 Fed. Reg.  1601.22. 
To the extent that Washington's letter may have been "publicized," it was
publicized by Washington, not by the EEOC.
                                
                           CONCLUSION
     The district court correctly dismissed Washington's claims against the EEOC
and its employees.  The law does not authorize a charging party to sue the EEOC in
connection with the processing of his charge.  For the reasons stated above, this Court
should affirm.
                    Respectfully submitted,
JAMES L. LEE                            
Deputy General Counsel                       
VINCENT J. BLACKWOOD                    
Acting Associate General Counsel             
CAROLYN L. WHEELER                 
Assistant General Counsel                    
                                        
                                        
___________________________        ______________________________
GAIL S. COLEMAN                    RAYFORD A. FARQUHAR
Equal Employment                   Assistant U.S. Attorney
   Opportunity Commission          United States Attorney's Office
1801 L Street, N.W., Room 7034     1 Courthouse Way, Suite 9200
Washington, D.C. 20507             Boston, MA 02210
(202) 663-4055                     (617) 748-3100

Attorneys for EEOC                 Attorney for Robert Sanders
                                      and Edith Kessler

                     CERTIFICATE OF SERVICE
                                
     I, Gail S. Coleman, hereby certify that I filed this brief with the Court this
21st day of February, 2006, by sending, via Federal Express, nine paper copies of
the brief plus a 3   computer disk containing the entire contents of the brief in
WordPerfect for Windows 9.0.
     I also certify that I served two copies of the brief this 21st day of February,
2006, by first-class mail, postage pre-paid, to the following counsel and/or litigant
of record:
          Keith D. Washington
          6265 Magnolia Ridge
          Stone Mountain, GA 30087

          Rayford A. Farquhar
          Assistant U.S. Attorney
          United States Attorney's Office
          1 Courthouse Way, Suite 9200
          Boston, MA 02210



                              ________________________________
                              GAIL S. COLEMAN
                              Attorney
                              U.S. EQUAL EMPLOYMENT
                                 OPPORTUNITY COMMISSION
                              Office of General Counsel
                              1801 L Street, N.W., Room 7034
                              Washington, D.C. 20507
                              (202) 663-4055

********************************************************************************
<<FOOTNOTES>>

<1> In a subsequent document, Washington claimed that his reference to 42 U.S.C.  1983 
was erroneous and sought to change the citation to 42 U.S.C.  1985.  (R.12, Memo in 
Opposition at 2.)

<2> This Court recently cast the qualified immunity analysis as a three-part algorithm.  
Savard v. R.I., 338 F.3d 23, 27 (1st Cir. 2003).  It described the threshold question as 
whether plaintiff has established a constitutional violation, the second question as 
whether the law was clearly established at the time of the constitutional violation, and 
the third question as whether a reasonable official would have understood that the conduct 
at issue contravened the clearly established law.  Id.  Whether viewed as a two or three 
part analysis, the substance of the analysis is identical.