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PEAVEY v. POLYTECHNIC INSTITUTE OF N.Y.
October 19, 1990
MORRIS J. PEAVEY, JR., PLAINTIFF,
POLYTECHNIC INSTITUTE OF NEW YORK, NEW YORK DEPARTMENT OF HUMAN RIGHTS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, DEFENDANTS.
The opinion of the court was delivered by: Glasser, District Judge:
Plaintiff brings this suit pro se under Title VII, Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against his
employer, Polytechnical University of New York, the Equal
Employment Opportunity Commission ("EEOC"), and the New York
Division of Human Rights, for religious discrimination. The
grounds for the suit against the EEOC is that its referral of
the suit to the New York Division of Human Rights, and the
EEOC's failure to investigate and act on the claim, were
Defendant EEOC moves for dismissal as to itself on three
(1) Rule 12(b)(6), Fed.R.Civ.P., for failure to
state a claim upon which relief can be granted;
(2) Rule 12(b)(1), Fed.R.Civ.P., for lack of
subject matter jurisdiction; and
(3) Rule 12(b)(5), Fed.R.Civ.P., for
insufficiency of service of process.
Because dismissal is warranted under Rule 12(b)(6) for failure
to state a claim, there is no need to address the
The basis of defendant's motion is that Title VII provides
no explicit or implicit cause of action against the EEOC. The
circuits which have addressed the issue have uniformly held
that no cause of action against the EEOC exists for challenges
to its processing of a claim. Representative of this line of
cases is McCottrell v. EEOC, 726 F.2d 350, 351-52 (7th Cir.
1984), which states:
It is settled law, in this and other circuits,
that Title VII does not provide either an express
or implied cause of action against the EEOC to
challenge its investigation and processing of a
charge. See, e.g., Stewart v. EEOC, 611 F.2d 679
(7th Cir. 1979); Francis-Sobel v. University of
Maine, 597 F.2d 15 (1st Cir. 1979), cert. denied,
444 U.S. 949, 100 S.Ct. 421, 62 L.Ed.2d 319 (1979);
Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir.
1979); Archie v. Chicago Truck Drivers, 585
210 (7th Cir. 1978); Gibson v. Missouri Pacific
Railroad, 579 F.2d 890 (5th Cir. 1978), cert.
denied, 440 U.S. 921, 99 S.Ct. 1245, 59 L.Ed.2d 473
Congress has provided that a plaintiff's remedy
in a case such as this is to commence suit in the
district court against the party allegedly
engaged in discrimination. A plaintiff is there
entitled to de novo review of his claims.
Or, also representative, is Francis-Sobel v. University of
Maine, 597 F.2d 15 (1st Cir. 1979), which held that no
constitutional cause of action exists against the EEOC for
assistance "by the EEOC that was worse than useless":
The attempt to find a right of action implied
in the federal constitution raises the question
whether an agency's less than useful attempts to
bestow a benefit provided by Congress can be so
unhelpful as to violate a constitutional right.
We think such is not the case here. . . . [W]e
think the agency's action neither deprived the
appellant of any interest she may have had
independent of the EEOC nor denied her such
substantial EEOC-administered benefits as to give
rise to a constitutional claim.
Nor do we think that even arbitrary and
capricious denial of the investigative and
conciliatory benefits the EEOC can provide to a
charging party transgresses the Due Process
Clause in a way that would support the
implication of a [Bivens-type] damage remedy.
Plaintiff's argument before this court as to the fact of and
the reasons for the EEOC's handling of this matter are to no
avail in the face of well-settled law, regardless of the
merits of his underlying claim of discrimination. His
opportunity to air argument stating those merits will be had
in this court if he so desires, but against the ...
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