Gorczakoski v. Equal Employment

                    [NOT FOR PUBLICATION]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.

                                         
        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. 

                             -3-

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

                             -6-

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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