Brezovski v. U.S. Postal Service
Decision Date | 11 June 1990 |
Docket Number | No. 89-2176,89-2176 |
Citation | 905 F.2d 334 |
Parties | 55 Fair Empl.Prac.Cas. 1717, 57 Fair Empl.Prac.Cas. 1786, 54 Empl. Prac. Dec. P 40,045, 58 USLW 2741, 16 Fed.R.Serv.3d 1155 William H. BREZOVSKI, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE; Postmaster General of the United States, Anthony Frank, Officially; Postmaster of Albuquerque, Rodney Smith, Officially, Defendants-Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Ruth B. Cohen, Albuquerque, N.M., for plaintiff-appellant.
William L. Lutz, U.S. Atty., and L.D. Harris, Asst. U.S. Atty., D. N.M., Albuquerque, N.M., Jesse L. Butler, Asst. Gen. Counsel, and Joan C. Goodrich, Atty., Office of Labor Law, U.S. Postal Service, Washington, D.C., for defendants-appellees.
Before LOGAN, JONES, * and SEYMOUR, Circuit Judges.
Plaintiff appeals the district court's dismissal of his claims, asserted pursuant to the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-796i (1982), alleging the United States Postal Service (USPS) unlawfully terminated plaintiff's employment because of his mental handicap, described by plaintiff as nervousness. 1 The district court dismissed plaintiff's claims for failure to file a timely complaint against the proper defendant.
Plaintiff initially challenged his termination through available administrative procedures. On September 10, 1987, the Equal Employment Opportunity Commission (EEOC) issued a final determination affirming the decision of the USPS to reject plaintiff's administrative complaint as untimely. Along with its final decision, the EEOC issued plaintiff a right to sue letter, notifying plaintiff he had thirty days from the date he received the EEOC's final decision to file a civil action in federal court. See 42 U.S.C. Sec. 2000e-16(c) (1982). 2 Plaintiff received the EEOC's notice and final decision September 15, 1987, and, acting pro se, timely filed a complaint with the district court October 14, 1987, naming the USPS as the defendant. Pursuant to 42 U.S.C. Sec. 2000e-16(c) (1982), however, the head of the agency, the United States Postmaster General, was the only proper defendant. See Johnson, 861 F.2d at 1478.
Plaintiff effected service by mail on both the United States Attorney for the District of New Mexico and the Albuquerque Post Office and Management Sectional Center on December 21, 1987. Plaintiff thereafter obtained counsel, who amended the complaint, on February 10, 1988, to include as defendants the United States Postmaster General and the Postmaster General of Albuquerque.
Plaintiff's failure to name the proper defendant in the original complaint will bar this action unless the amendment to the complaint adding the United States Postmaster General relates back to the original date of filing under Fed.R.Civ.P. 15(c). See id.; see also Warren v. Department of Army, 867 F.2d 1156, 1158 (8th Cir.1989). An amendment to add the proper defendant will relate back to the date of filing the original complaint if all of the following four requirements are met:
"(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period."
Johnson, 861 F.2d at 1479 (quoting Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986)). Plaintiff's amendment of the complaint to add the United States Postmaster General satisfied the first requirement. Further, plaintiff's service of the United States Attorney for the District of New Mexico was sufficient to meet the second and third requirements. See Johnson, 861 F.2d at 1480 n. 5.
In order to meet the fourth requirement, however, notice to the United States Attorney must have been effected within the limitations period for commencing the action. See id. It is undisputed that plaintiff did not mail the summons and complaint to the United States Attorney until December 21, 1987, beyond the thirty-day time period for filing a civil action. See 42 U.S.C. Sec. 2000e-16(c) (1982). Nonetheless, plaintiff argues that the time period for filing this civil action should be tolled because the language in the EEOC's right to sue notice misled plaintiff into naming the USPS, rather than the United States Postmaster General, as the defendant.
Martinez, 738 F.2d at 1110 (citations omitted); see also Warren, 867 F.2d at 1159-60 ( ).
I R., Doc. 7, Exh. 9 (emphasis in original). Plaintiff argues this language reasonably can be read to require a plaintiff to name either the official agency or the head of the department as the defendant.
Two circuits have considered whether this language in the EEOC right to sue notice is misleading. The First Circuit, in Rys v. United States Postal Service, 886 F.2d 443, 447 (1st Cir.1989), determined that "[w]hen separated from its surrounding sentences, ... the indicted sentence can be read in the disjunctive." However, the court also concluded that "when read in context, the sentence at issue is not as confusing as when it is examined on its own." Id. Despite its conclusion that the EEOC letter "may be unclear," the court found that the equities did not favor tolling in the case before it, largely because "Rys has not persuaded us that he was, in fact, misled by the EEOC's right-to-sue letter." Id. 3
The Eighth Circuit, in Warren v. Department of Army, 867 F.2d 1156 (8th Cir.1989), determined that this same language in the EEOC notice "can be read as requiring the plaintiff to name either the agency or its head; it is unclear whether 'head' modifies only 'department' or also 'agency,' and the remainder of the letter leaves this ambiguity unresolved." Id. at 1160. The court concluded that the language in the right to sue notice misled the plaintiff into believing he had done everything required of him when he filed a complaint naming only the Department of the Army as a defendant. Id. The Eighth Circuit noted that that fact alone might justify tolling the limitations period, but also relied upon the fact that the plaintiff's motion for appointment of counsel and application to proceed in forma pauperis remained pending before the district court for more than thirty days, thus delaying service of the complaint until after the expiration of the thirty-day limitations period, to justify tolling the limitations period. Id.
The misleading nature of this language in the right to sue letter has been criticized, in dicta, by a number of courts. See Williams v. Army and Air Force Exch. Serv., 830 F.2d 27, 31 (3d Cir.1987) (...
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