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