Blong v. Secretary of Army, Civ. A. No. 93-4147-DES.

• Decision Date: 28 February 1995
• Docket Number: Civ. A. No. 93-4147-DES.
• Citation: 877 F. Supp. 1494
• Court: U.S. District Court — District of Kansas
• Parties: Gloria Jean BLONG, Plaintiff, v. SECRETARY OF the ARMY, Togo D. West, Jr., Major General James F. Rueger and Richard E. Cordwell, Defendants.

877 F. Supp. 1494

Gloria Jean BLONG, Plaintiff, v. SECRETARY OF the ARMY, Togo D. West, Jr., Major General James F. Rueger and Richard E. Cordwell, Defendants.

Civ. A. No. 93-4147-DES.

United States District Court, D. Kansas.

February 28, 1995.

Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for plaintiff Gloria Jean Blong.

Jackie A. Rapstine, Office of U.S. Atty., Topeka, KS, for defendant John W. Shannon, Secretary of the Army.

David D. Plinsky, Office of City Atty., City of Topeka, John J. Knoll, Office of Atty. Gen., Topeka, KS, for defendants James F. Rueger, Major Gen., and Richard E. Cordwell.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

I. INTRODUCTION

This matter is before the court on Major General James F. Rueger and Chief Warrant Officer Richard E. Cordwell's motions to be dropped as defendants pursuant to Federal Rule of Civil Procedure 21 (Doc. 47) and to dismiss or, in the alternative, for summary judgment (Doc. 66) and the Secretary of the Army's ("Secretary") motion for summary judgment (Doc. 64).

Plaintiff brings this action alleging defendants unlawfully discriminated against her under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, by refusing to hire her because of her sex. The court has reviewed the factual and legal memoranda submitted by the parties, as well as the relevant law, and is now ready to rule.

II. RUEGER AND CORDWELL'S MOTION PURSUANT TO FED.R.CIV.P. 21

Rueger and Cordwell argue they are improper party defendants and should be dropped pursuant to Fed.R.Civ.P. 21.¹ Specifically, they argue as follows: plaintiff applied for a federal job; 42 U.S.C. § 2000e-16 governs actions contesting the employment practices of the federal government; § 2000e-16(c) authorizes suit against only the head of the department, agency, or unit with which plaintiff sought employment; the Secretary is the head of the relevant governmental department; therefore, § 2000e-16(c) authorizes suit against only the Secretary.²

On April 27, 1991, plaintiff applied for the "competitive" technician position of Supply Clerk (Typing) with the United States Property and Fiscal Office ("USPFO"), Kansas Army National Guard ("KANG"). The position was federal. 32 U.S.C. § 709(c). Title 42, § 2000e-16, United States Code, provides the exclusive remedy for claims of sexual discrimination in federal employment. Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976); Murphy v. Derwinski, 776 F.Supp. 1466, 1469 (D.Colo.1991), aff'd 990 F.2d 540 (10th Cir.1993).³ In pertinent part, § 2000e-16(a) provides as follows: "all personnel actions affecting ... applicants for employment ... in military departments as defined in section 102 of Title 5, ... shall be made free from any discrimination based on ... sex...." 42 U.S.C. § 2000e-16(a).⁴ Section 2000e-16(c) authorizes an aggrieved applicant to bring a civil action against the government. 42 U.S.C. § 2000e-16(c). More specifically, § 2000e-16(c) authorizes the applicant to "file a civil action ... in which ... the head of the department, agency, or unit ... shall be the defendant." Id. (Emphasis added). Therefore, the only proper defendant in such an action is the head of the department, agency, or unit with which the applicant sought employment. See, e.g., Canino v. United States E.E.O.C., 707 F.2d 468, 472 (11th Cir.1983); Hall v. Small Business Admin., 695 F.2d 175, 180 (5th Cir.1983); Beth v. Espy, 854 F.Supp. 735, 738 (D.Kan.1994) (citing Meiri v. Dacon, 607 F.Supp. 22, 23 (S.D.N.Y.1984), aff'd, 759 F.2d 989 (5th Cir.), cert. denied 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985)). See also Brezovski v. U.S. Postal Service, 905 F.2d 334, 335 (10th Cir.1990) (noting in dictum that "pursuant to 42 U.S.C. § 2000e-16(c) ... the head of the agency ... is the only proper defendant"); Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986) (referring to, and discussing, § 2000e-16(c) in an Age Discrimination in Employment Act case), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987).

Plaintiff seems to argue Rueger is a proper defendant because he is the Adjutant General of the KANG and, as such, is the head of a federal "agency." "An `agency' is an `executive agency' defined as `an Executive department, a Government corporation, or an independent establishment.'" Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir. 1989), overruled on other grounds, Williams-Scaife v. Department of Defense Dep. Schools, 925 F.2d 346, 348 n. 4 (9th Cir.1991) (recognizing recent Supreme Court authority changing the Ninth Circuit's approach to equitable tolling of 42 U.S.C. § 2000e-16 actions). An "Executive department" is one of the fourteen cabinet-level departments. 5 U.S.C. § 101. A "Government corporation" is a corporation owned or controlled by the United States Government. 5 U.S.C. § 103. An "independent establishment" is either the General Accounting Office or an establishment in the executive branch that is not a military department. 5 U.S.C. § 104. The KANG is not an "Executive department," "Government corporation," or "independent establishment." Plaintiff points to no other "Executive department," "Government corporation," or "independent establishment" of which the Adjutant General is head.⁵ Thus, Major General Rueger is not a proper defendant. James v. Day, 646 F.Supp. 239, 240-41 (D.Me.1986). See also Lopez v. Louisiana Nat. Guard, 733 F.Supp. 1059, 1065 n. 10 (E.D.La.) (questioning, but not deciding, whether the Chief of the National Guard Bureau, was the proper defendant and dismissing on other grounds), aff'd, 917 F.2d 561 (5th Cir.1990). Cf. Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir.1988) (holding that since the Army and Air Force Exchange Service ("AAFES") is not an "agency," and since, therefore, the Commander of the AAFES is not the head of an "agency," the proper defendant was either the Secretary of Defense or the Secretaries of the Army and the Air Force jointly); Hancock v. Egger, 848 F.2d 87, 88-89 (6th Cir.1988) (holding Internal Revenue Service ("IRS") is not a "department," "agency," or "unit"; therefore, Commissioner of the IRS is not a proper defendant). But cf. Taylor v. Jones, 653 F.2d 1193, 1206-07 (8th Cir.1981).

Similarly, Cordwell's authority as hiring officer and role as interviewer do not make him the head of a federal department, agency, or unit. Thus, Cordwell is not a proper defendant. See Soto v. U.S. Postal Service, 905 F.2d 537, 539 (1st Cir.1990) (explaining that the only proper defendant is the Postmaster General and the court should dismiss claims against all other defendants, including local supervisors), cert. denied, 498 U.S. 1027, 111 S.Ct. 679, 112 L.Ed.2d 671 (1991); Hall, 695 F.2d at 180 (noting that there is no cause of action under § 2000e-16(c) against the SBA, its regional director, or its district director; instead, the Administrator of the SBA is the only proper defendant); Rys v. United States Postal Service, 702 F.Supp. 945, 947 (D.Mass.) (dismissing entire case where plaintiff sued only Postal Service and local postal employees), aff'd, 886 F.2d 443 (1st Cir.1989); Person v. United States Dept. of Agriculture, 593 F.Supp. 1054, 1059 (E.D.Wis.1984) (stating that "the proper party defendant is the pertinent agency head, not his or her various employees or the agency itself").

Rueger and Cordwell's motion to be dropped as defendants is granted.⁶

III. SECRETARY'S MOTION FOR SUMMARY JUDGMENT

The Secretary moves for summary judgment arguing plaintiff is unable to raise a genuine issue of unlawful discrimination and, alternatively, her claim is barred as a matter of law.

A. Summary Judgment Standards

A court shall render summary judgment upon a showing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The rule provides that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The substantive law identifies which issues are material. Id. at 248, 106 S.Ct. at 2510. A dispute over a material fact is genuine when the evidence is such that a reasonable jury could find for the nonmovant. Id. "Only disputes over facts that might properly affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The movant has the initial burden of showing the absence of a genuine issue of material fact. Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033, 1036 (10th Cir.1993). The movant may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmovant's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The movant need not negate the nonmovant's claim. Id. at 323, 106 S.Ct. at 2552-2553. Once the movant makes a properly supported motion, the nonmovant must do more than merely show there is some metaphysical doubt as to the material facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The nonmovant must go beyond the pleadings and, by affidavits or the depositions, answers to the interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (interpreting Rule 56(e)).

A court must view the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all reasonable inferences to be drawn from the evidence. See, e.g., United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986) (stating that "the court must...