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Volz v. United States Equal Employment Opportunity Commission

United States District Court, E.D. Virginia, Richmond Division

December 22, 2016

ANDREW J. VOLZ, Plaintiff,
v.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.

          MEMORANDUM OPINION

          M. Hannah Lauck, United States District Judge

         This matter comes before the Court on Defendant United States Equal Employment Opportunity Commission's (the "EEOC") Motion to Dismiss. (ECF No. 2.) Plaintiff Andrew J. Volz, proceeding pro se, has not responded to the Motion to Dismiss, and the time to do so has expired.[1] The matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. For the reasons that follow, the Court will grant the Motion to Dismiss.

         I. Procedural and Factual Background

         Andrew J. Volz filed a "Petition for Appeal"[2] in the Colonial Heights Circuit Court, challenging the EEOCs dismissal of his Charge of Discrimination (the "Charge of Discrimination") arising out of his employment at Pizza Hut. (ECF No. 1-1.) The United States of America, on behalf of the EEOC, and pursuant to 28 U.S.C. §§ 1442(a)[3] and 1446, [4] properly removed the Petition for Appeal to this Court. (ECF No. 1.) The facts underlying Volz's claim arise from the Charge of Discrimination, which claimed that: (1) Volz was discriminated against on the basis of his sex and disability; and, (2) he was retaliated against for protected activity, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA").

         Volz alleges that he began employment as a driver at Pizza Hut on April 30, 2014. Volz asserts that he informed his "Assistant Management, Crystal Mann, " that his doctor "recommended [he] not do dishes." (Charge of Discrimination 6.) In June 2015, however, "Assistant Management, Lilian Casey, " ordered him "to do dishes knowing [he] had an accommodation to not wash dishes." (Id.) Volz claims that he only observed men washing dishes and that "females would not have to wash dishes." (Id.) Volz, however, "was not given a reason why [he] should wash dishes, " nor was he "given a reason why only males would do dishes." (Id.)

         Volz later complained to the Store Manager "about being placed on delivery when [he] was already at another delivery, " (Id.) Subsequently, Volz's "hours were cut and [he] was taken off the schedule entirely." (Id.) Volz argued to the EEOC that he "was forced to resign and constructively discharged [from Pizza Hut] because of [his] sex, male, [and] retaliated against because of [his] protected activity." (Id.) The EEOC dismissed the Charge of Discrimination, finding that the information before it did not establish violations of Title VII or the ADA.

         II. Analysis

         The EEOC seeks dismissal of Volz's action on either of two grounds: (I) for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1);[5] or, alternatively, (2) for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).[6] Of course, if the Court lacks subject matter jurisdiction over the alleged claims, the EEOC's alternative basis for dismissal becomes moot. Harrison v. U.S. Social Sec. Admin., No. 3:13cv435, 2014 WL 29042, at *1 (E.D. Va. Jan. 2, 2014). Accordingly, the Court begins by addressing the EEOC's motion as it pertains to subject matter jurisdiction. Because neither Title VII nor the ADA authorizes individuals alleging discrimination by a third party to file suit against the EEOC, the Court must dismiss Volz's Petition for Appeal.

         A. Federal Rule of Civil Procedure 12(b)(1) Standard

         In a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenging the Court's subject matter jurisdiction, the burden rests with the plaintiff, as the party asserting jurisdiction, to prove that federal jurisdiction is proper. See Int'l Longshoremen's Ass 'n v. Va. Int'l Terminals, Inc., 914 F.Supp. 1335, 1338 (E.D. Va. 1996) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A motion to dismiss pursuant to Rule 12(b)(1) can attack subject matter jurisdiction in two ways. First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting that the complaint fails to state a claim upon which subject matter jurisdiction can lie. See Int'l Longshoremen's Ass'n, 914 F.Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a challenge, a court assumes the truth of the facts alleged by plaintiff, thereby functionally affording the plaintiff the same procedural protection he or she would receive under Rule 12(b)(6) consideration. See Int'l Longshoremen's Ass 'n, 914 F.Supp. at 1338; see also Adams, 697F.2d at 1219.

         A Rule 12(b)(1) motion may also challenge the existence of subject matter jurisdiction in fact, apart from the pleadings. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Int'l Longshoremen's Ass 'n, 914 F.Supp. at 1338; see also Adams, 697 F.2d at 1219. In such a case, because a party challenges the court's "'very power to hear the case, '" the trial court is free to weigh evidence to determine the existence of jurisdiction. Int'l Longshoremen's Ass 'n, 914 F.Supp. at 1338 (quoting Mortensen v. First Fed. Sav. & Loan Ass 'ft, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See id.; see also Adams, 697 F.2d at 1219.

         If the facts necessary to determine jurisdiction intertwine with those facts central to the merits of the dispute, the proper course of action is for the court to find that jurisdiction exists and then to resolve the factual dispute on the merits unless the claim is made solely for the purpose of obtaining jurisdiction, or is determined to be wholly insubstantial and frivolous. Bell v. Hood, 327 U.S. 678, 682-83 (1946); United States v. North Carolina, 180 F.3d 574, 580 (4th Cir. 1999); Adams, 697 F.2d at 1219.

         B. Title VII Does Not Authorize Suit Against the EEOC for Third-Party Discrimination

         Title VII does not confer subject matter jurisdiction over Volz's Petition for Appeal because Title VII does not authorize individuals alleging discrimination by a third party to file suit against the EEOC. Title VII affords no express cause of action against the EEOC. Title VII grants jurisdiction under three sections, none of which apply here: (1) Section 706(f)(3), 42 U.S.C. § ...


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