United States District Court, W.D. Michigan, Southern Division
Janet T. Neff, Judge.
REPORT AND RECOMMENDATION
S. Carmody, United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Writ of Mandamus, (ECF No. 1), and Defendants'
Motion to Dismiss, (ECF No. 19). Pursuant to 28 U.S.C.
§ 636(b)(1)(B), the undersigned recommends that
Plaintiff's motion be denied,
Defendants' motion be granted, and this
September 11, 2015, Plaintiff filed a “charge of
discrimination” with the Equal Employment Opportunity
Commission (EEOC). (ECF No. 22-1 at PageID.174). Plaintiff
alleged that he was “forced” to involuntarily,
and without justification, resign his position with
Arby's. (ECF No. 22-1 at PageID.174). Plaintiff alleged
that he was “discharged due to [his] national origin,
Hispanic, and in retaliation for opposing unlawful employment
practices, in violation of Title VII of the Civil Rights Act
of 1964, as amended.” (ECF No. 22-1 at PageID.174). The
EEOC docketed Plaintiff's complaint and began
investigating Plaintiff's allegations. (ECF NO. 22-2 at
February 18, 2016, Plaintiff submitted to the EEOC a
“motion for summary judgment” under 29 C.F.R.
§ 1614.109(g). (ECF No. 1 at PageID.5; ECF No. 1-1 at
PageID.30-51). On February 23, 2016, Gail Cober, Field
Director of the EEOC's Detroit Field Office, authored a
letter to Plaintiff informing him that the EEOC was
dismissing Plaintiff's claim. (ECF No. 1-1 at
PageID.64-66). Specifically, Cober indicated that video
evidence submitted by Arby's established that
Plaintiff's termination was proper and, moreover, that
Plaintiff had failed to present “any information or
evidence” suggesting that Arby's acted unlawfully.
(ECF No. 1-1 at PageID.64-66). Plaintiff was further informed
that he could further pursue the matter by initiating legal
action in federal court within 90 days. (ECF No. 1-1 at
March 17, 2016, Plaintiff sent an email to Gail Cober
requesting “an ‘electronic' form 5 EEOC
complaint form.” (ECF No. 1-1 at PageID.53-62).
Plaintiff indicated that he wished to amend his EEOC
complaint to assert additional charges based upon statements
made by Gail Cober in her February 23, 2016 letter to
Plaintiff. (ECF No. 1-1 at PageID.53-62). On August 24, 2017,
Plaintiff sent an email to Victoria Lipnic, EEOC Acting
Chair, and Milton Mayo, Inspector General, requesting that
the EEOC take immediate action on his complaint against
Arby's and enter an award of summary judgment in
Plaintiff's favor. (ECF No. 1-1 at PageID.68-77).
Plaintiff apparently received no response to these
initiated the present action on June 6, 2018, against the
EEOC, Gail Cober, and Victoria Lipnic requesting mandamus
relief. (ECF No. 1). Specifically, Plaintiff requests that
the Court order Defendants to: (1) further investigate his
discrimination claim against Arby's; (2) award Plaintiff
summary judgment; and (3) provide Plaintiff with a Form 5 so
that he can amend his initial discrimination charge.
Plaintiff also references the Administrative Procedures Act
(APA) and 28 U.S.C. § 1331 as creating jurisdiction in
this Court over his request for relief. Defendants have now
moved to dismiss Plaintiff's complaint and motion for
does not appear to have explicitly indicated whether he is
suing Defendants Cober and Lipnic in their personal or
official capacities. However, several facts lead the Court to
conclude that Plaintiff is suing Cober and Lipnic in their
official capacities only. The caption of Plaintiff's
motion for mandamus/complaint identifies Cober and Lipnic by
their official titles. The only allegations against Cober and
Lipnic concern actions undertaken in their official capacity.
The relief Plaintiff seeks can only be provided by Cober
and/or Lipnic acting in their official capacity. Finally,
Plaintiff's motion for mandamus/complaint fails to
provide adequate notice to Cober or Lipnic that they face
personal liability in this matter. See, e.g., Beil v.
Lake Erie Correction Records Department, 282 Fed.Appx.
363, 367 (6th Cir., June 13, 2008). Because Cober and Lipnic
are being sued in their official capacities, Plaintiff's
claims are, in fact, asserted against the EEOC. See,
e.g., Baar v. Jefferson County Board of Education, 476
Fed.Appx. 621, 634-35 (6th Cir., Mar. 7, 2012). Thus, for all
practical purposes, the only Defendant in this matter is the
EEOC, an agency of the United States government.
Subject Matter Jurisdiction
well understood that the United States is immune from suit
except to the extent that it consents to be sued. See
Toledo v. Jackson, 485 F.3d 836, 838 (6th Cir. 2007)
(citations omitted). A “waiver of the Federal
Government's sovereign immunity must be unequivocally
expressed in statutory text and will not be implied.”
Thompson v. McHugh, 388 Fed.Appx. 870, 873 (6th
Cir., July 21, 2010) (citation omitted). Moreover,
“[t]he scope of any waiver must be strictly construed
in favor of the government.” Thompson, 388
Fed.Appx. at 873 (citation omitted). Plaintiff bears the
burden to establish that the Court has subject matter
jurisdiction over his claims and/or action. See Novick v.
Frank, 2017 WL 4863168 at *1 (6th ...