United States District Court, E.D. Virginia, Richmond Division
December 22, 2016
ANDREW J. VOLZ, Plaintiff,
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant.
Hannah Lauck, United States District Judge
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. 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
Procedural and Factual Background
J. Volz filed a "Petition for Appeal" 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) and 1446,  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").
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.)
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.
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); or,
alternatively, (2) for failure to state a claim upon which
relief can be granted under Federal Rule of Civil Procedure
12(b)(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.
Federal Rule of Civil Procedure 12(b)(1)
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.
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.
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
Title VII Does Not Authorize Suit Against the EEOC for
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. § 2000e-5(f)(3); (2)
Section 707(b), 42 U.S.C. § 2000e-6(b); and Section
717(c), 42 U.S.C. § 2000e-16(c).
706(f)(3) of Title VII, 42 U.S.C. § 2000e-5(f)(3),
authorizes federal district courts to hear enforcement
actions brought by private parties against discriminating
employers. Volz sues the EEOC, not Pizza Hut, the private
party that allegedly discriminated against him. Accordingly,
this Court does not have jurisdiction pursuant to Section
706(f)(3), 42 U.S.C. § 2000e-5(f)(3).
707(b) of Title VII, 42 U.S.C. § 2000e-6(b), permits
federal district courts to hear cases brought by the EEOC
against persons engaged in a pattern or practice of
resistance to the goals of Title VII. This case is not
brought by the EEOC against persons engaging in a
pattern or practice of resistance to the goals of Title VII.
Volz brings suit against the EEOC. Thus, Section
707(b), 42 U.S.C. § 2000e-6(b) cannot provide
jurisdiction allowing Volz to litigate this case.
717(c) of Title VII, 42 U.S.C. § 2000e-16(c), grants
federal district courts jurisdiction over claims of
employment discrimination brought by federal employees (or
applicants for federal employment) against their federal
employer. Volz's claim stems from private employment. He
does not allege that he is a federal employee or an applicant
for federal employment. Therefore, this Court lacks
jurisdiction under Section 717(c), 42 U.S.C. §2000e-
none of the three jurisdictional provisions in Title VII
covers Volz's case, no express cause of action exists for
this Court to recognize. To the extent that, construing his
claim liberally, Volz's Petition for Appeal could be
characterized as one brought against the EEOC due to
dissatisfaction with that agency's process or its
decision, settled law also makes evident that Title VII does
not provide such an implied cause of action. Georator v.
EEOC, 592 F.2d 765, 765 (4th Cir. 1979). In sum,
although Title VII authorizes federal district courts to hear
cases against employers, Title VII does not grant
jurisdiction over cases against the EEOC for actions taken by
the EEOC in the course of carrying out its enforcement
The ADA Does Not Authorize Suit Against the EEOC for
also does not confer subject matter jurisdiction over
Volz's Petition for Appeal because the ADA does not
authorize individuals alleging discrimination by a third
party to file suit against the EEOC. This conclusion governs
both an express and an implied cause of action, Section 107
of the ADA, 42 U.S.C. § 12117, incorporates the powers,
remedies, and procedures of Title VII. Because Title VII does
not confer jurisdiction over cases against the EEOC in its
capacity as an enforcement agency, neither does the ADA.
Accordingly, the ADA does not confer subject matter
jurisdiction over Volz's Petition for Appeal, and Volz
fails to carry his burden that federal jurisdiction is
proper. See Int'l Longshoremen's Ass 'n,
914 F.Supp. at 1338.
foregoing reasons, the Court will grant the Motion to
Dismiss. (ECF No. 2.) The Court will dismiss the Petition for
Appeal, without prejudice, for lack of subject matter
jurisdiction. (ECF No. 1-1.) However, to the extent Volz
believes amendment could cure the jurisdictional issues
requiring dismissal, the Court will grant Volz leave to file
an amended complaint.
appropriate order will accompany this Memorandum Opinion.
 The EEOC provided Volz with
appropriate notice pursuant to Roseboro v. Garrison,
528 F.2d 309, 310 (4th Cir. 1975). (ECF No. 4.)
No federal rule provides for a
"petition for appeal" of an EEOC decision. The
Court, nonetheless, will address Volz's claims because
"[d]istrict courts have a duty to construe pro
se pleadings liberally." Blankenship v. Am.
Fed. Gov't Employees, No. 3:15cv294, 2016 WL
1276425, at *2 (E.D. Va. Mar. 30, 2016) (citing Bracey v.
Buchanan, 55 F.Supp.2d 416, 421 (E.D. Va.
Section 1442(a) provides, in pertinent
part, that "[a] civil action or criminal prosecution
that is commenced in a [s]tate court and that is against or
directed to [the United States or any agency thereof] may be
removed by them to the district court of the United States
for the district and division embracing the place wherein it
is pending." 28 U.S.C. § 1442(a)(1).
Section 1446 provides the procedure for
removing civil actions from a state court.
 "[A] party may assert the
following defense[ ] by motion: (1) lack of subject-matter
jurisdiction." Fed.R.Civ.P. 12(b)(1).
"A motion to dismiss under Rule
12(b)(6) tests the sufficiency of a complaint; importantly,
it does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses."
Republican Parly of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (citing 5 A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1356 (1990)). In considering a motion to dismiss for
failure to state a claim, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in
the light most favorable to the plaintiff. Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);
see also Martin, 980 F.2d at 952. This principle
applies only to factual allegations, however, and "a
court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth." Ashcroft v. Iqbal, 556 U.S. 662, 679