Gorczakoski v. Equal Employment

• Court: Court of Appeals for the First Circuit
• Decided: August 9, 1993
• Docket: 93-1101
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                For The FIRST CIRCUIT

____________________

No. 93-1101

                              BERENICE MARY GORCZAKOSKI,

                                Plaintiff, Appellant,

                                          v.

                   EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.,

                                Defendants, Appellees.

____________________

        No. 93-1108

                              BERENICE MARY GORCZAKOSKI,

                                Plaintiff, Appellant,

                                          v.

                 MASSACHUSETTS DEPARTMENT OF PUBLIC WELFARE, ET AL.,

                                Defendants, Appellees.

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                    APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

Berenice Mary Gorczakoski on brief pro se.
            _________________________
            Donald  R.  Livingston, General  Counsel,  Gwendolyn Young  Reams,
            ______________________                     ______________________
        Associate  General  Counsel,  Lorraine  C.  Davis,  Assistant  General
                                      ___________________

Counsel,  and  Jennifer  S.  Goldstein,  Attorney,  Equal   Employment
                       _______________________
        Opportunity  Commission,  on  brief  for  appellee,  Equal  Employment
        Opportunity Commission.

____________________

                                    August 9, 1993
                                 ____________________

Per Curiam.   In  these consolidated  appeals, plaintiff
                 __________

            Berenice  Mary  Gorczakoski appeals  from two  district court

            orders  dismissing  her  complaints.   For  the  reasons that

            follow, we affirm in each instance.

                                   I.  No. 93-1101
                                       ___________

                 In May 1988, plaintiff was terminated from her long-time

            position  as  ticket  agent  with  Eastern  Air  Lines,  Inc.

            (Eastern).  She thereafter filed charges against Eastern with

            both  the  Massachusetts  Commission  Against  Discrimination

            (MCAD)  and the EEOC,  alleging discrimination on  account of

            sex, national origin and handicap.  In August 1991, following

            an  investigation, an  MCAD  commissioner  found  a  lack  of

            probable  cause  to  support plaintiff's  allegations.   That

            determination  was  affirmed  on  administrative  appeal  the

            following month.   Likewise, the EEOC's Boston  Area Director

            issued a determination letter on  May 14, 1992, finding  that

            plaintiff's allegations were unsupported and advising  her of

            her right to file a private action against Eastern.

                 Plaintiff responded  by  filing  the  instant  suit  for

            damages, not against  Eastern, but against the  EEOC itself.1

            She   alleged   that   the  EEOC   handled   her   charge  of

____________________

            1.  At the district court's direction, plaintiff later  filed
            an  amended  complaint  naming   Eastern  as  a  codefendant.
            Eastern  then  reported  that  it  had  filed  a  Chapter  11
            bankruptcy petition in March 1989 and was therefore protected
            by the automatic  stay.   See 11  U.S.C.   362(a)(1).   As  a
                                      ___
            result, plaintiff's claims against Eastern were not addressed
            below. 

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discrimination in a deficient manner--particularly by failing

            to  conduct  an  independent  investigation  and  failing  to

            monitor the  MCAD.   The  district court  granted the  EEOC's

            unopposed motion  to dismiss, determining  that plaintiff had

            failed to state  a claim upon which relief  could be granted.

            This determination was plainly correct.

                 It is well established that Congress has not authorized-

            -either  expressly or  impliedly,  either  in  Title  VII  or

            elsewhere--"a cause of  action directly against the  EEOC for

            misprocessing   of   claims  asserted   against   third-party

            employers."   Scheerer v. Rose  State College, 950  F.2d 661,
                          ________    ___________________

            662-63  (10th Cir. 1991) (noting that courts have "uniformly"

            so held), cert. denied, 112 S. Ct. 2995 (1992); accord, e.g.,
                      ____________                          ______  ____

            McCottrell v. EEOC, 726 F.2d 350, 351 &  n.1 (7th Cir. 1984);
            __________    ____

            Ward v.  EEOC, 719  F.2d 311, 312-14  (9th Cir.  1983), cert.
            ____     ____                                           _____

            denied, 466 U.S. 953 (1984); Georator Corp. v. EEOC, 592 F.2d
            ______                       ______________    ____

            765, 767-68 (4th Cir. 1979).  Likewise, we have held that any

            mishandling by  the EEOC of a  Title VII claim  does not give

            rise  to a  Bivens implied  right of  action under  the Fifth
                        ______

            Amendment.   See Francis-Sobel  v. University  of Maine,  597
                         ___ _____________     ____________________

            F.2d 15, 17-18 (1st Cir.), cert. denied, 444 U.S. 949 (1979);
                                       ____________

            cf. Johnson  v. Rodriguez,  943 F.2d  104, 108-09  (1st Cir.)
            ___ _______     _________

            (alleged  irregularities  in handling  of complaint  by state

            antidiscrimination commission did  not implicate due  process

            interest), cert. denied, 112 S. Ct. 948 (1992).  Instead, the
                       ____________

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ability  to pursue de  novo judicial proceedings  under Title

            VII against the party allegedly engaged in discrimination was

            intended to be  "the all-purpose remedy for  charging parties

            dissatisfied with the EEOC's handling of their charge."  Hall
                                                                     ____

            v. EEOC,  456 F. Supp. 695,  701 (N.D. Cal. 1978)  (quoted in
               ____

            Ward, 719 F.2d at 314).
            ____

                 As  mentioned,  plaintiff   has  filed  claims  directly

            against Eastern, but they  are subject to the automatic  stay

            arising from Eastern's  bankruptcy petition.  Absent  interim

            relief from  the bankruptcy  court, pursuit  of those  claims

            must await the lifting of the stay.2  

                                   II.  No. 93-1108
                                        ___________

                 At  the  root  of  this  appeal is  the  denial  by  the

            Massachusetts Department of  Public Welfare (DPW) in  1991 of

____________________

            2.  We  need not reach, and  therefore do not decide, whether
            the  filing of  the  complaint  against  Eastern  was  itself
            violative of the automatic stay.   Likewise, we do not decide
            whether  the pendency of  the claims against  Eastern renders
            the district  court order non-final, such that (absent a Rule
            54(b) certification) appellate jurisdiction would be lacking.
            To the extent  that those  claims are  without legal  effect,
            see, e.g., Easley v. Pettibone Michigan Corp., 990  F.2d 905,
            ___  ____  ______    ________________________
            908 (6th Cir. 1993) ("by operation of the automatic stay, the
            commencement of plaintiffs' action, whether void or voidable,
            did not take place until the stay was lifted"), it would seem
            that our jurisdiction would be unaffected.  Yet we bypass the
            matter, taking refuge  in the "familiar principle  that where
            an  appeal presents a difficult jurisdictional issue, yet the
            substantive merits underlying the issue are facilely resolved
            in  favor   of  the   party  challenging   jurisdiction,  the
            jurisdictional inquiry may  be avoided."  Kotler  v. American
                                                      ______     ________
            Tobacco Co., 926 F.2d 1217,  1221 (1st Cir. 1990), vacated on
            ___________                                        __________
            other   grounds,  112  S.  Ct.  3019  (1992);  accord,  e.g.,
            _______________                                ______   ____
            Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 8 n.5 (1st
            _________________________    ________
            Cir. 1991).  

                                         -5-

plaintiff's  application  for   Medicaid  benefits  and  food

            stamps.  In rendering that  decision, the DPW determined that

            plaintiff's assets  and  income both  exceeded the  allowable

            limits   prescribed  by   state   regulations  for   Medicaid

            eligibility.     Plaintiff   then  filed  charges   with  the

            Department  of Health  and Human  Services'  Office of  Civil

            Rights  (OCR),  alleging  that  the  DPW  had  withheld  such

            benefits  because of  her age,  national origin,  handicapped

            status, and other impermissible factors.  The OCR (the agency

            responsible  for   ensuring  that  recipients   of  financial

            assistance from the  Department of Health and  Human Services

            do  not  engage  in  unlawful  discrimination)  conducted  an

            investigation.   It found  that the DPW's  decision comported

            fully with state and federal  law and had not been influenced

            by discriminatory considerations. 

                 Plaintiff then filed  the instant suit against  the OCR,

            claiming   that  it  had   failed  to  conduct   an  adequate

            investigation.   She  subsequently  amended her  complaint to

            include  the DPW as a defendant, challenging the propriety of

            its  decision  to deny  her  benefits.   The  district  court

            dismissed the  action against both defendants,  and plaintiff

            has appealed.

                 The dismissal  of the claims  against the  OCR need  not

            detain us long.  For many of the same reasons discussed above

            in connection with  the EEOC, as well as  those enumerated in

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an  earlier appeal  brought by  plaintiff  against the  OCR's

            counterpart  in  another federal  agency, see  Gorczakoski v.
                                                      ___  ___________

            U.S. Department of Labor, No. 92-2189 (1st Cir. May 4, 1993),
            ________________________

            we find no arguable basis for subjecting the OCR to liability

            as a result of any alleged improprieties in its processing of

            plaintiff's claim.   As  there is no  reason to  believe that

            plaintiff could remedy  this defect in her  complaint against

            the  OCR   "through  more   specific  pleading,"   Denton  v.
                                                               ______

            Hernandez, 112 S. Ct. 1728, 1734 (1992), dismissal thereof as
            _________

            frivolous  under 28  U.S.C.    1915(d)  was not  an abuse  of

            discretion.   See, e.g., Neitzke  v. Williams, 490  U.S. 319,
                          ___  ____  _______     ________

            325  (1989)  (complaint  is  frivolous  "where  it  lacks  an

            arguable basis either  in law or in fact");  Watson v. Caton,
                                                         ______    _____

            984 F.2d 537, 539 (1st Cir. 1993).

                 With regard to  plaintiff's claims against the  DPW, the

            district court  granted an  unopposed motion  to dismiss  for

            lack of jurisdiction.   It reasoned that any  attempt to gain

            judicial  review  of the  DPW's  denial of  benefits  must be

            pursued in state court under the Massachusetts Administrative

            Procedure Act, Mass. G.L. c. 30A,   14.  We perceive no error

            in the district court's ruling.  

                 The judgments are affirmed.
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