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Moralez v. Equal Employment Opportunity Commission

United States District Court, W.D. Michigan, Southern Division

February 25, 2019

JOHN MORALEZ, Plaintiff,
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Defendants.

          Hon. Janet T. Neff, Judge.

          REPORT AND RECOMMENDATION

          Ellen S. Carmody, United States Magistrate Judge

         This 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 action terminated.

         BACKGROUND

         On 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 PageID.177-78).

         On February 18, 2016, Plaintiff submitted to the EEOC a “motion for summary judgment” under 29 C.F.R. § 1614.109(g).[1] (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 PageID.66).

         On 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 communications.

         Plaintiff 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 mandamus relief.

         ANALYSIS

         I. Capacity

         Plaintiff 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.

         II. Subject Matter Jurisdiction

         It is 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 ...


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