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ORDER

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HONORABLE RONALD B. LEIGHTON

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DONNA MAE LEITNER,

 Plaintiff,

v.

JOHN E. POTTER and UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY

COMISSION,

Defendants.

Case No. C05-5674RBL

ORDER GRANTING DEFENDANT’S

MOTION TO DISMISS EQUAL

EMPLOYMENT OPPORTUNITY

COMMISSION

I. INTRODUCTION

This matter comes before the Court on the Defendant Equal Employment Opportunity Commission’s

(“EEOC”) Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim. (Dkt. #11).

The Plaintiff has not responded and no response is required, pursuant to Fed. R. Civ. P. 12(h)(3). The

Defendant claims that because it was not Plaintiff’s employer, her discrimination claims lack both jurisdiction

and merit. In addition, there was no waiver of sovereign immunity to permit the Plaintiff to file a lawsuit

against the EEOC. 

Having reviewed the parties’ submissions, the Court determines that it does not have subject matter

jurisdiction over this matter. For the reasons set forth below, the Court hereby GRANTS this motion and

dismisses the EEOC from this case.

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ORDER

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II. BACKGROUND

The Plaintiff was an employee of United States Postal Service (“USPS”). In her complaint, the 

Plaintiff claimed that the alleged discrimination began on or about August 1, 2001 but described a long history

of discrimination dating back to June 1997. Complaint, p. 2 (Dkt. #1). She alleged that her employer was

discriminatory with respect to her disabilities: post traumatic stress disorder, borderline disorder, and mixed

anxiety. She was eventually terminated in March 2002. The Plaintiff also alleged that the USPS failed to

provide reasonable accommodations and assist with filing her worker’s compensation claims. Id.

 On August 18, 2002, she filed an administrative charge with the EEOC, claiming that the USPS had

discriminated against her on the basis of disability. Id. On July 20, 2005, the Plaintiff received a Notice of

Right to Sue from the EEOC. Id. The Plaintiff filed this lawsuit on October 13, 2005. 

III. DISCUSSION

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

As an initial matter, Defendant EEOC moves to dismiss for lack of subject matter jurisdiction under

Fed. R. Civ. P. Rule 12(b)(1). A complaint must be dismissed under this rule if, considering the factual

allegations in the light most favorable to the plaintiff, the action: 1) does not arise under the Constitution, laws,

or treaties of the United States, or does not fall within one of the other enumerated categories of Article III,

Section 2 of the Constitution; 2) is not a case or controversy within the meaning of the Constitution; or 3) is

not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus.,

Inc. v. Tinnerman, 62 F.Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. §§ 1331 (federal question

jurisdiction) and 1346 (United States as a defendant). When considering a motion to dismiss pursuant to Rule

12(b)(1), the Court is not restricted to the face of the pleadings, but may review any evidence to resolve factual

disputes concerning the existence of jurisdiction. McCarth v. United States, 850 F.2d 558, 560 (9th Cir.

1988), Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). A federal court is presumed

to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of

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ORDER

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America, 511 U.S. 375 (1994). Therefore, the plaintiff bears the burden of proving the existence of subject

matter jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

B. This Court Lacks Subject Matter Jurisdiction Over Any Claims Against the EEOC

The Plaintiff pursues claims against the EEOC under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-5. Complaint, p. 2 (Dkt. #1). The Plaintiff claims that her employer, USPS, discriminated

against her on the basis of disability. The Court examines the Plaintiff’s claims and determines that it lacks

subject matter jurisdiction over this matter. 

1. The Plaintiff’s Title VII Claims

There are three ways Title VII confers federal courts over discrimination claims. First, § 706(f)(3), 42

U.S.C. § 2000e-5(f)(3) provides federal courts with jurisdiction over acts brought against employers,

employment agencies, and labor organizations accused of discriminatory employment practices. Second,

federal courts have jurisdiction over actions brought by the EEOC or the Attorney General against persons

engaged in discriminatory employment practices. 707(b), 42 U.S.C. § 2000e-6(b) (emphasis added). Third,

717, 42 U.S.C. § 2000e-16(c) provides jurisdiction over lawsuits by federal employees or employee applicants

against the head of the federal agency accused of discriminatory employment practices; “the head of the

department, agency or unit” where the discrimination occurred shall be considered the only proper defendant

in these lawsuits. 717(c), 42 U.S.C. § 2000e-16(c). 

 This Court lacks subject matter jurisdiction because the EEOC is not the agency where the Plaintiff was

employed. Courts have consistently determined that unless the EEOC is the employing agency, a plaintiff may

not file against the EEOC if an individual alleges discrimination by a third-party. Mahoney v. U.S. Postal Serv.,

884 F.2d 1194, 1196 (9th Cir. 1989); Ayon v. Sampson, 547 F.2d 446, 447 n. 2 (9th Cir. 1976). In this case,

the Plaintiff’s former employer is the USPS, not the EEOC. The Postmaster General is the only appropriate

Defendant in this action.

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The Defendant draws a distinction between the Plaintiff’s claims and claims that permit a waiver of

sovereign immunity. A clear example is the Federal Tort Claims Act (“FTCA”), which provides a waiver of

the federal government’s immunity for certain negligence claims. See 28 U.S.C. § 1346(b). However, the

FTCA requires a complainant to exhaust her available administrative remedies before bringing an action against

the United States in federal district court. See 28 U.S.C. § 2675(a). 

ORDER

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2. The Plaintiff’s Rehabilitation Act Claims

The Plaintiff’s complaint does not include a claim for violation of the Rehabilitation Act, 29 U.S.C.

794a, but does reference discrimination on the basis of disability. Even if the Court reads the Plaintiff’s claim

to include this allegation, it still lacks subject matter over the case as between the Plaintiff and the EEOC. 

The Rehabilitation Act provides federal courts with the same jurisdictional power that are permitted

under Title VII. 29 U.S.C. 794a(a)(1). The procedures for Title VII actions set forth at 42 U.S.C. § 2000e-16

apply to claims brought under the Rehabilitation Act. See 29 U.S.C. § 794a(a)(1). The Rehabilitation Act,

like Title VII, does not provide parties with a cause of action against the EEOC unless it is an employing

agency. See Mahoney, 884 F.2d at 1196 n. 1. Because Title VII provides no remedy for the Plaintiff and the

same is true with regard to this claim for discrimination under § 794a. The Court lacks subject matter

jurisdiction because the Plaintiff’s former employer is the USPS, not the EEOC. 

C. There is No Waiver of Sovereign Immunity 

Even if this Court has jurisdiction over the Plaintiff’s claim, she failed to state a claim under Fed. R.

Civ. 12(b)(6). The Plaintiff has not pursued a claim under any statute that waives sovereign immunity. In this

case both Title VII and the Rehabilitation Act are not statutes that waive sovereign immunity. Moreover, even

if the Plaintiff can waive sovereign immunity for these claims, she failed to exhaust her administrative remedies

by not filing an administrative tort claim with the EEOC before filing this lawsuit.1

Sovereign immunity applies in lawsuits in which a United States federal agency is named as a defendant.

See Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 1006 (1963). The United States or a federal agency

cannot be sued unless sovereign immunity has been waived. United States v. Mitchell, 445 U.S. 535, 538, 100

S. Ct. 1349, 1351 (1980). Unless Congress waives sovereign immunity in a federal statute, the Courts lack

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subject matter jurisdiction over that lawsuit. United States v. Sherwood, 312 U.S. 584, 587-88, 61 S. Ct. 67,

769-70, 85 L.2d 1058 (1941). There is no federal statute that permits the EEOC to waive sovereign immunity

in circumstances where it is not the employing agency. Sovereign immunity has not been waived therefore the

Court lacks jurisdiction.

IV. CONCLUSION

Based on the foregoing reasons, the Court GRANTS Defendant EEOC’s Motion to Dismiss for lack

of subject matter jurisdiction. (Dkt. #11). The Court hereby DISMISSES the EEOC from this lawsuit.

 IT IS SO ORDERED. 

DATED this 18th of March 2008

A

RONALD B. LEIGHTON

UNITED STATES DISTRICT JUDGE

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