Gorczakoski v. Equal Employment, 1 F.3d 1231, 1st Cir. (1993)

1 F.
3d 1231
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be
cited only in related cases.
Berenice Mary GORCZAKOSKI, Plaintiff, Appellant,

v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et
al., Defendants,
Appellees.
Berenice Mary Gorczakoski, Plaintiff, Appellant,
v.
Massachusetts Department of Public Welfare, et al.,
Defendants, Appellees.
Nos. 93-1101, 93-1108.
United States Court of Appeals,

First Circuit.
August 9, 1993.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF MASSACHUSETTS
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.
D.Mass.
AFFIRMED.
Before Selya, Boudin and Stahl, Circuit Judges.
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
2
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
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 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).
5
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

6
At the root of this appeal is the denial by the Massachusetts Department of

Public Welfare (DPW) in 1991 of 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 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. Sec. 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).

9
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, Sec. 14. We perceive no error in the district court's ruling.
10
The judgments are affirmed.
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. Sec. 362(a)(1). As a result, plaintiff's claims
against Eastern were not addressed below
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)

Gorczakoski v. Equal Employment, 1 F.3d 1231, 1st Cir. (1993)

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1 F.

Berenice Mary GORCZAKOSKI, Plaintiff, Appellant,

United States Court of Appeals,

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR

In these consolidated appeals, plaintiff Berenice Mary Gorczakoski appeals

It is well established that Congress has not authorized-either expressly or

II. No. 93-1108

At the root of this appeal is the denial by the Massachusetts Department of

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

The judgments are affirmed.

At the district court's direction, plaintiff later filed an amended complaint

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