The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
MARKOS AYAD GEORGY CASE NO. 6:21-CV-04216
VERSUS JUDGE JAMES D. CAIN, JR.
UNIVERSITY OF LOUISIANA MAGISTRATE JUDGE CAROL B.
LAFAYETTE ET AL WHITEHURST
MEMORANDUM RULING
Before the Court is “Defendant’s Motion to Dismiss” (Doc. 51) filed by the United
States Equal Employment Opportunity Commission (“EEOC”)1 by and through Brandon
B. Brown, the United States Attorney for the Western District of Louisiana, and Desiree
C. Williams, Assistant United States Attorney. Defendant moves to dismiss the instant
lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction over
the subject matter, and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim for relief. Plaintiff, Markos Ayad Georgy, has not filed an opposition to the
motion.
INTRODUCTION
On July 23, 2021, Plaintiff Georgy contacted the New Orleans Field Office of the
EEOC to file a charge of employment discrimination against the University of Louisiana
at Lafayette (“ULL”). Plaintiff filed two (2) charges (Charge Nos. 461-2021-01371 and
461-2021-01880) with the EEOC.2
1 Service has not been effected on Defendant EEOC Investigator, Tania Reyes.
2 Doc. 1-3, pp. 9, 19.
Plaintiff contends that he was discriminated against based upon his disability in
violation of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101, e seq.
Specifically, Plaintiff alleges that ULL (1) did not provide him a reasonable
accommodation for his disability during the 2020 fall semester, (2) dismissed Plaintiff from
the Master’s Program toward the end of the 2020 fall semester, and (3) caused Plaintiff to
lose his teacher’s assistant position, which provided him free tuition and a monthly
stipend.3
On August 18, 2021, the EEOC issued a right-to-sue notice signed by Tania H.
Reyes.4 On November 23, 2021, Plaintiff filed the instant civil action, pro se, naming as
Defendants, ULL, the University of Louisiana Systems, EEOC Investigator Tania H.
Reyes, presumably in her official capacity, the U.S. Department of Education, Office of
Education, Office of Civil Rights, and Timothy Caum, in his official capacity for the
Department of Education.5
As to Ms. Reyes, Plaintiff alleges that she improperly dismissed his charges.6
Plaintiff further alleges that his personal email was hacked in August 2021, and he suspects
it was personnel with the EEOC.7
RULE 12(b)(1) STANDARD
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides:
Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a
3 Docs. 1-2, p.7; 1-3, pp. 9,15,119,25-26, 29, 31, 33, 35.
4 Doc. 1-3, pp. 9-10, 19.
5 Docs. 1, p. 2, 1-2, p. 7.
6 Doc. 1-3, pp. 9-10, 19.
7 Doc. 1-3, at 10 and 20.
party may assert the following defenses by motion: (1) lack of
subject-matter jurisdiction. . .
A court may base its disposition of a motion to dismiss under Rule 12(b)(1) on: (1)
the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.
Robinson v. TCI/US West Communications, Inc., 117 F.3d 900 (5th Cir. 1997), citing
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct.
396, (1981).
Courts may consider affidavits and exhibits submitted in connection with a Rule
12(b)(1) motion to dismiss. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir.
1994). Once challenged with competent proof, the plaintiff must prove by a preponderance
of the evidence that the court has subject matter jurisdiction. Middle South Energy, Inc. v.
City of New Orleans, 800 F.2d 488, 490 (5th Cir. 1986). A motion to dismiss under Rule
12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set
of facts in support of his claims that would entitle plaintiff to relief. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
LAW AND ANALYSIS
Federal courts have limited jurisdiction, possessing only that power granted by the
Constitution or authorized by Congress. See Kokkonen v. Guardian Life Ins. Of America,
511 U.S. 375, 377 (1994); Insurance Corp. of Ireland v. Compagne des Bauxites de
Guinee, 456 U.S. 694, 701-02 (1982). “The requirement that jurisdiction be established as
a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United
States’ and is ‘inflexible and without exception.’” Steel Co. v. Citizens for A Better Env’t,
523 U.S. 83, 94-95 (1998) (citations omitted).
The EEOC is an agency of the United States government, established by Congress
in section 705 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-
4. The EEOC has enforcement authority under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. (Title VII) and the ADA. For this Court to entertain
a claim against the EEOC, Plaintiff must establish that the United States has waived its
sovereign immunity and has consented to be sued. See United States v. Mitchell, 445 U.S.
535, 538 (1980); United States v. Testan, 424 U.S. 392, 399 (1976); United States v.
Sherwood, 312 U.S. 584, 586 (1941).
Title VII created the EEOC but did not confer jurisdiction over the EEOC in its
capacity as an enforcement agency. See Newsome v. Equal Employment Opportunity
Commission, 301 F.3d 227, 232 (5th Cir. 2002). Title VII provides federal courts with
three (3) specific sources of jurisdiction: (1) actions brought against employers,
employment agencies, and labor organizations accused of discriminatory employment
practices, section 706(f)(3), 42 U.S.C. § 2000e-5(f)(3), (2) actions brought by the EEOC
or the Attorney General against persons engaged in a pattern or practice of resistance to the
goals of Title VII, § 707 (b), 42 U.S.C. § 2000e6(b), and (3) suits by federal employees, or
applicants for employment, against the head of the federal agency accused of
discriminatory employment practices, section 717, 42 U.S.C. § 2000e-16.
Plaintiff has failed to establish that the EEOC, an enforcement agency of the United
States, has waived its sovereign immunity, nor does the ADA confer jurisdiction.
Furthermore, none of the three (3) provisions granting jurisdiction in Title VII provide
jurisdiction in cases where the plaintiff is suing the EEOC in its capacity as the enforcement
agency. In addition, the term “employer” as used in the ADA expressly excludes the
United States.
RULE 12(b)(6) STANDARD
Rule 12(b)(6) allows for dismissal when a plaintiff “fail[s] to state a claim upon
which relief can be granted.” When reviewing such a motion, the court should focus on the
complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). The
court can also consider documents referenced in and central to a party’s claims, as well as
matters of which it may take judicial notice. Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498–99 (5th Cir. 2000); Hall v. Hodgkins, 305 Fed. App’x 224, 227 (5th Cir.
2008) (unpublished).
Such motions are reviewed with the court “accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club,
Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough facts
‘to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Accordingly, the court’s task is not to evaluate the plaintiff’s likelihood of success
but instead to determine whether the claim is both legally cognizable and plausible. Lone
Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).
LAW AND ANALYSIS
Assuming, arguendo, that this Court has jurisdiction, the EEOC maintains that
Plaintiff has failed to state a claim for relief concerning the EEOC’s processing of
Plaintiff’s administrative charges.
“Courts have uniformly held that no cause of action exists with respect to the
EEOC’s handling of discrimination claims because Congress has given plaintiffs a right to
file a de novo lawsuit against the alleged discriminating employer. Terry v. EEOC, 21
S.Supp.2d 566 (E.D. Va. 1998), aff’d, 173 F.3d 425 (4th Cir. 1999). Plaintiff has not
demonstrated that Congress has granted a right of action against the EEOC “either
expressly or by implication.” Warth v. Seldin, 422 U.S. 490, 501 (1975).
Moreover, a litigant such as Plaintiff, a teaching assistant as a result of his student
status with a third party (ULL), cannot assert an express right to a remedy against the EEOC
because no such remedy exists under Title VII, the ADA, or any other statute. McCottrell
v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984).
Finally, Title VII and the ADA provide that an individual who seeks redress for
employment discrimination must first file a charge with the EEOC. Once the EEOC
dismisses a charge or otherwise terminates its processing of a charge, the charging party
(plaintiff) may bring suit against the employer. That court action is a de novo proceeding,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), whereas the manner in which
the EEOC processes or resolves a charge is not binding upon a court. Id. at 798-99.
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
Because there is no remedy available against the EEOC based on Plaintiffs
dissatisfaction with the EEOC’s administrative processing of his charges, Plaintiff can
assert no claims against this Defendant.
CONCLUSION
For the reasons set forth herein, the Motion to Dismiss filed by the United States
Equal Employment Opportunity Commission will be granted dismissing Plaintiff's claims
against this Defendant.
THUS DONE AND SIGNED in Chambers this 26th day of August, 2022.
UNITED STATES DISTRICT JUDGE
Page 7 of 7