complaint and, in reliance on EEO-MB-107, upheld the joint processing.
The complaint in this case alleges in part that defendant Thomas, the Chairman of the EEOC, failed to appoint a complaint examiner, denied the plaintiff a hearing, and failed to provide findings or develop a record, thus violating Title VII and ADEA. Basically, the portion of plaintiff's complaint leveled at defendant Thomas arises from plaintiff's disagreement with the two EEOC decisions as well as the EEOC's reliance on EEO-MB-107.
The question is whether the Chairman of the EEOC is amenable to suit under either Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e-16, or the Age Discrimination in Employment Act, 29 U.S.C. § 633a, by a federal employee who is not in the employ of the EEOC. The Court concludes that he is not.
It is clear "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." McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984) (citations omitted). A plaintiff may vindicate his rights by filing a complaint against the party allegedly engaged in the discrimination. Id. at 352. Mr. Svenson has done this. The plaintiff's Title VII claim against defendant Thomas fails to state a claim upon which relief can be granted and therefore must be dismissed. See Fed. R. Civ. P. 12(b)(6).
Section 15 of the ADEA, 29 U.S.C. § 633a, was modeled after Title VII. Lehman v. Nakshian, 453 U.S. 156, 163, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981). Whenever possible, the two statutes are to be construed consistently. Oscar Mayer and Co. v. Evans, 441 U.S. 750, 756, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979). The plaintiff's claim against defendant Thomas under the ADEA, not being against the head of the employing agency, also must fail. The plaintiff's sole remedy under Title VII and ADEA lies against the head of the employing agency allegedly perpetrating the discrimination. Accordingly, it hereby is
ORDERED, that defendant Thomas' motion to dismiss as to him is granted with prejudice.