Dipaulo v. Potter

• Decision Date: 29 July 2008
• Docket Number: Civil Action No. 1:07cv260.
• Citation: 570 F.Supp.2d 802
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Cathy T. DiPAULO, Plaintiff, v. John POTTER, Postmaster General, United States Postal Service, Defendant.

570 F.Supp.2d 802

Cathy T. DiPAULO, Plaintiff, v. John POTTER, Postmaster General, United States Postal Service, Defendant.

Civil Action No. 1:07cv260.

United States District Court, M.D. North Carolina.

July 29, 2008.

Humphrey S. Cummings, The Cummings Law Firm, P.A., Charlotte, NC, for Plaintiff.

Joan Brodish Binkley, Office of U.S. Attorney, Greensboro, NC, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Plaintiff Cathy T. DiPaulo ("DiPaulo") sues John Potter in his representative capacity as Postmaster General of the United States Postal Service ("USPS") alleging gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (2006), and mental disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794(a) (2006). She also seeks review of the Merit Systems Protection Board's ("MSPB") Final Order pursuant to 5 U.S.C. § 7703 (2006). USPS moves to dismiss for lack of subject-matter jurisdiction, insufficiency of service of process, and failure to state a claim, pursuant to Rules 12(b)(1), (5) and (6), Fed.R.Civ.P., respectively. (Doc. 7.) For the reasons stated below, the action will be dismissed, without prejudice.

I. FACTS

From September 1994 to September 2004, DiPaulo was a rural letter carrier employed by the USPS in its Hillsborough, North Carolina office. (Doc. 6 ¶¶ 4, 10.) During the course of her employment she began to suffer the effects of anxiety and depression. (Id. ¶ 6.) In August 2004, Di-Paulo's supervisors added mailboxes to her delivery route and, she contends, failed to properly credit her for the additional workload which resulted in a reduction of her wages. (Id. ¶¶ 14-16.) DiPaulo alleges these additions "were imposed for discriminatory reasons based on her impairments and disability related conditions, and had the purpose and effect of creating a hostile and abusive work environment which caused the plaintiff to resign from her job due to the intolerable working conditions." (Id. ¶ 16.) DiPaulo resigned from her position on September 15, 2004. (Doc. 15 at 1.) On September 30, 2004, DiPaulo was medically diagnosed with the "mental impairments of anxiety and depression," which she alleges resulted from her work conditions. (Doc. 6 ¶ 6; Doc. 15 Ex. A.)

On January 24, 2005, DiPaulo timely filed a Complaint with the USPS's Equal Employment Office ("EEO") alleging gender and disability discrimination. (Doc. 8 Ex. A-2.) The EEO issued its Investigative Report on April 19, 2006. (Id.) Within 30 days of receiving the investigative file, DiPaulo had the option of requesting either an immediate final decision from the USPS EEO or a hearing and decision from the Equal Employment Opportunity Commission ("EEOC"). See 29 C.F.R. § 1614.108(f) (2007); (Doc. 8 Ex. A-2.) On May 5, 2006, she requested a hearing with the EEOC. (Doc. 8 Ex. A-2.) On June 19, 2006, the EEOC denied DiPaulo's request for a hearing on the grounds that her complaint alleged constructive discharge, which the EEOC concluded rendered it a "mixed case" that should be appealed to the MSPB. (Id.) The EEOC returned Di-Paulo's complaint to the USPS EEO for a final agency decision. (Id.)

The EEO issued its Final Agency Decision on August 10, 2006. Applying the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the EEO concluded that DiPaulo failed to demonstrate Title VII gender discrimination and failed to establish she was a person with a disability within the meaning of the Rehabilitation Act. (Doc. 8 Ex. A-2 at 4-5.) The EEO went on to explain that even if she had made a prima facie showing of discrimination based on a physical disability, the USPS articulated a legitimate, non-discriminatory reason for its actions. (Id.) The EEO concluded DiPaulo suffered no discrimination on the basis of her gender or disability. (Id. Ex. A-2 at 10.)

DiPaulo appealed the EEO Final Agency Decision to the MSPB, in accordance with the EEOC's earlier pronouncement. (Id.); see 5 C.F.R. §§ 1201.3, 1201.111 (2007). The MSPB Administrative Law Judge ("ALJ") issued an Initial Decision, finding that DiPaulo failed to establish that the MSPB had jurisdiction over her case, namely because she failed to show that she was a preference eligible employee¹ or a manager, supervisor or personnelist doing other than non-confidential clerical work. Thus, the ALJ concluded that DiPaulo was not entitled to appeal her case to the MSPB. (Doc. 8 Ex. A-3.) The MSPB denied DiPaulo's petition for review of its Initial Decision and affirmed in a Final Order on February 27, 2007. (Id.); see 5 C.F.R. § 1201.113(c).

DiPaulo filed this lawsuit on April 3, 2007. (Doc. 1.) In her Amended-Complaint, DiPaulo seeks two primary forms of relief: judicial review of the MSPB Final Order finding no jurisdiction over her claims; and a determination of her discrimination claims by jury. Before consideration of these issues, the court must address USPS's motion to dismiss on the grounds of untimely service of process.

II. ANALYSIS

A. Insufficiency of Service of Process

DiPaulo filed her Complaint on April 3, 2007,² had Summons issued on April 25, 2007, and served the Complaint and Summons upon USPS on August 7, 2007, one hundred and twenty-six days from the filing the Complaint and one hundred and four days from the issuance of the Summons.³ USPS moves for dismissal under Rule 12(b)(5), Fed.R.Civ.P., because Di-Paulo failed to serve the Complaint and Summons upon the Postmaster General within 120 days after the action was filed in compliance with Rule 4(m), Fed.R.Civ. P., and argues that good cause for such delay is required and cannot be shown. DiPaulo counters with an affidavit of her counsel which declares that he mistakenly thought the Complaint was filed when the Summons was issued, which would have made service timely. Counsel further states that, motivated by his concern for "the emotional health of the plaintiff," he purposefully delayed service to permit Di-Paulo to better cope with the anxiety she was experiencing at the time. (Doc. 15 Ex. 1 ¶ 8.) These reasons, it is argued, provide good cause to excuse the failure to serve timely.

Prior to 1993, the requirements of Rule 4(m) were found in Rule 4(j), which required dismissal if service was not made within 120 days of the filing of the action, absent a showing of good cause. Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir.1993); Motsinger v. Flynt, 119 F.R.D. 373, 375 (M.D.N.C.1988). In 1993, Rule 4(j) was edited and redesignated as Rule 4(m), which currently provides:

If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period....

The Advisory Committee Notes to the Rule 4(m) amendments state unambiguously, as seems apparent from the text of the rule, that the court must "allow additional time if there is good cause for the plaintiff's failure to effect service in the prescribed 120 days, and [the rule] authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown." Fed.R.Civ.P. 4 advisory committee's note (emphasis added).

Confusion on the application of Rule 4(m) seems to have resulted in some quarters from the Fourth Circuit's 1995 opinion in Mendez v. Elliot, 45 F.3d 75, 80 (4th Cir.1995), where, in affirming dismissal of the action, the court held that Rule 4(m) still requires a showing of good cause to avoid dismissal for failure to serve process within 120 days. This holding was articulated without reference to the 1993 Advisory Committee's Notes to Rule 4(m). To complicate matters, one year later the Supreme Court stated in dicta that under Rule 4(m) district courts have "discretion to enlarge the 120-day period for service, even if there is no good cause shown." Henderson v. United States, 517 U.S. 654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (quoting 1993 Advisory Committee's Notes on Fed.R.Civ.P. 4). Shortly after that, the Fourth Circuit, in an unpublished opinion, wrote that the Supreme Court's statement in Henderson was "persuasive," questioned the continuing validity of Mendez, but declined to overrule its decision based solely on dicta. See Scruggs v. Spartanburg Reg'l Med. Ctr., No. 98-2364, 1999 WL 957698, at *2 (4th Cir. Oct 19, 1999).

Mendez has understandably come under question in light of Henderson. Yet USPS's argument is consistent with several courts that have read Mendez, absent reversal by the Fourth Circuit,⁴ to continue to require a showing of good cause to overcome a default in timely service. See, e.g., Patterson v. Brown, No. 3:06cv476, 2008 WL 219965, *13-14 (W.D.N.C. Jan.24, 2008) (listing Fourth Circuit cases calling Mendez into question, but concluding that controlling Fourth Circuit precedent requires showing of good cause); Hoffman v. Baltimore Police Dep't, 379 F.Supp.2d 778, 786 (D.Md.2005) (same); U.S. ex rel. Shaw Envt. v. Gulf Ins. Co., 225 F.R.D. 526, 527 (E.D.Va.2005) (same); Terry v. Marshall, No. 1:03CV00741, 2004 WL 1348219, at *1 (M.D.N.C. June 7, 2004) (same); Wright v. Durham County Jail and Staff (Med., Etc.), No. 1:00CV922, 2002 WL 737730, at *2 (M.D.N.C. Mar.4, 2002) (same); Melton v. Tyco Valves & Controls, Inc., 211 F.R.D. 288, 290 (D.Md.2002) (same and questioning the "continued vitality of Mendez"); Johnson v. United Steel Workers of Am., 172 F.R.D. 185, 187-88 n. 6 (W.D.Va. 1997) (noting Mendez required a showing of good cause for a Rule 4(m) extension). But see Giacomo-Tano v. Levine, No. 982060, 1999 WL 976481, at *2 (4th Cir. Oct.27, 1999) (holding district court may grant an extension of...