DiPompo v. West Point Military Academy

Decision Date02 March 1989
Docket NumberNo. 86 Civ. 4124 (MBM).,86 Civ. 4124 (MBM).
Citation708 F. Supp. 540
PartiesMichael V. DiPOMPO, Plaintiff, v. WEST POINT MILITARY ACADEMY, Chief Administrative Officers of West Point Military Academy, in individual and official capacities, whose names are unknown, George Diaz, in his individual and official capacities, Edward O'Connell, in his individual and official capacities, Michael Heller, in his individual and official capacities, Anthony Ferraiulo, in his individual and official capacities, and Dr. John Francis, in his individual and official capacities, Defendants.
CourtU.S. District Court — Southern District of New York

Kipp Eliott Watson, New York City, for plaintiff.

James L. Garrity, Asst. U.S. Atty. (Susan P. Johnston, Asst. U.S. Atty., of counsel), New York City, for defendants.

Ronald A. Salvatore, Office of the Staff Judge Advocate, U.S. Military Academy, West Point, N.Y., of counsel to defendants.


MUKASEY, District Judge.

Plaintiff Michael V. DiPompo moves for summary judgment against defendant the United States Military Academy, West Point Military Reserve, sued here as West Point Military Academy (West Point) as to a portion of his employment discrimination suit, and moves to substitute the Secretary of the Army (the Secretary), sued in his official capacity, for defendants the chief administrative officers of West Point, sued in their official and individual capacities. Fed.R.Civ.P. 56(a), 15. Defendants West Point and its chief administrative officers, as well as George Diaz; Edward O'Connell; Michael Heller; Anthony Ferraiuolo, sued here as Anthony Ferraiulo; and Dr. John Francis, sued both as individuals and officials of West Point, move for judgment on the pleadings or summary judgment dismissing the entire complaint, and they also seek sanctions. Fed.R.Civ.P. 12(c), 56(b), 11. For reasons given below, DiPompo's motion for summary judgment is denied; his motion to amend his complaint is granted; defendants' motion for summary judgment or dismissal, as prosecuted by the Secretary, is granted in part and denied in part; and the motion for sanctions is denied.


DiPompo suffers from dyslexia, a handicap that interferes with his ability to read. When DiPompo is calm, he can read about as well as an advanced first grader. However, when DiPompo is under stress, the evidence indicates that he is illiterate. At the time of the alleged discrimination, DiPompo was a mason's helper at West Point, and a volunteer fire fighter in the Beacon, New York, Fire Department.

In September 1980 and June 1982, DiPompo applied to work as a fire fighter at West Point. Both his applications were rejected. In January 1984, DiPompo asked to be temporarily transferred to a summer fire fighter's position. DiPompo's request was denied. In May, 1984, DiPompo attempted informal mediation with the help of West Point's Equal Employment Opportunity (EEO) Office. When the mediation efforts failed, on June 20, 1984, DiPompo filed an EEO complaint alleging that West Point's decision not to transfer him temporarily was illegally based on his handicap.

In September 1984, while his earlier claim was being investigated, DiPompo applied to become a structural fire fighter. As part of his application, DiPompo took a physical examination and was required to read from fire fighters' manuals. As defendants would later explain, fire fighters at West Point must be able to read at a 12th grade level in order to be accepted. After he failed his examination, DiPompo was rejected.

On January 22, 1985, DiPompo filed a second EEO complaint, asserting that West Point's failure to hire him as a structural fire fighter was illegally based on his handicap. That complaint was amended on February 7, 1985.

On April 26, 1986, DiPompo received the Army's determination that he was not temporarily transferred to the fire fighting unit for reasons unrelated to his handicap. That determination also informed him of his right to sue. On May 23, 1986, he filed the present action.

Approximately seven weeks later, on July 7, 1986, the Army determined that there was no merit to DiPompo's second claim of hiring discrimination, and issued him another right-to-sue letter. On August 5, 1986, on the 29th day after that letter was issued, DiPompo served the Attorney General of the United States with a copy of his verified complaint.

In his complaint, DiPompo seeks declaratory, injunctive, and monetary relief from all defendants for violations of 42 U.S.C. § 1985(3) (1982), and §§ 501 and 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act), 29 U.S.C. §§ 791 and 794 (1982 & Supps. II 1984, III 1985, IV 1986) respectively. In addition, DiPompo seeks identical relief from West Point for violation of § 503 of the Rehabilitation Act, 29 U.S.C. § 793 (1982), and the New York Human Rights Law, N.Y.Exec.Law § 296(1)(a) (McKinney 1982). Moreover, DiPompo seeks relief from the individual defendants for the intentional infliction of emotional distress, and for aiding and abetting West Point to violate the New York Human Rights Law. N.Y.Exec. Law § 296(6) (McKinney 1982).


DiPompo acknowledges that he erroneously sued the chief administrative officers of West Point, and he seeks to replace them with the Secretary, who would be sued only in his official capacity. Fed.R. Civ.P. 15(a). In consonance with the principle that a party should be allowed to amend his pleadings once "as a matter of course," that request is granted. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir.1966); 3 J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore's Federal Practice ¶ 15.10 (2d ed. 1988). However, because some of DiPompo's claims against the Secretary are time-barred, granting DiPompo's motion does not mean that the Secretary now can be sued on each of DiPompo's claims against the chief administrative officers of West Point.

The general rule is that a plaintiff cannot sue a new defendant after the statute of limitations has expired as to that defendant. See Schiavone v. Fortune, 477 U.S. 21, 25-32, 106 S.Ct. 2379, 2382-2386, 91 L.Ed.2d 18 (1986). In this case, the statute of limitations on each of DiPompo's claims of discrimination runs for 30 days after DiPompo receives a right-to-sue letter from the Army. 42 U.S.C. § 2000e-16(c) (1982). Therefore, if DiPompo now attempted to commence a suit against the Secretary, his claims would be barred. However, claims arising out of one of DiPompo's EEO complaints meet a narrow exception to this general rule, and therefore, those claims survive, and relate back to the date of the original complaint. Fed. R.Civ.P. 15(c).

The exception to the general rule was most recently articulated in Fortune. In essence, Fortune permits a plaintiff to sue a new defendant on a claim in the original complaint, but only when that defendant was notified of the claim before the statute of limitations expired. 477 U.S. at 29, 106 S.Ct. at 2384.

In this case, DiPompo gave notice of this suit to the Attorney General of the United States, who is the Secretary's agent for service of process, on August 5, 1986. Fed.R.Civ.P. 15(c). Serving the Attorney General notifies the Secretary that a claim is being made against him, and that "but for a mistake concerning identity, the action would have been brought against him." Fortune, 477 U.S. at 29, 106 S.Ct. at 2384. Therefore, even if DiPompo did not name the Secretary as a defendant until much later, the date that the Attorney General received a copy of the complaint is the date that the Secretary is deemed to have been served with the complaint.

DiPompo received notice of a right to sue on his first claim of employment discrimination on April 26, 1986, over nine weeks before the Attorney General was served. Therefore, DiPompo did not notify the Secretary of his suit on the first EEO complaint until well after the allotted 30 days had passed. Accordingly, any claims based on that first EEO complaint cannot be prosecuted against the Secretary. In the terminology of Fed.R.Civ.P. 15, DiPompo's claim against the Secretary under his first EEO complaint will not relate back to the date his complaint was filed.

In contrast to the claims raised in the first EEO complaint, DiPompo's claims of employment discrimination based on his second EEO complaint may be brought against the Secretary because DiPompo can show that the Attorney General was served within 30 days of the second right-to-sue letter. Fortune, 477 U.S. at 29, 106 S.Ct. at 2384. Therefore, DiPompo may pursue against the Secretary only the claims contained in his second EEO complaint, filed on January 22, 1985, and amended on February 7, 1985.


As a federal employee suing the federal government for employment discrimination, DiPompo cannot pursue many of the claims he presses. In 1972, Congress added § 717 to the Civil Rights Act of 1964. Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, § 11, 86 Stat. 103, 111 (1972), codified as amended at 42 U.S.C. § 2000e-16 (1982). Section 717 provides federal employees the full range of administrative and judicial remedies for employment discrimination, and in return requires that the administrative remedies of Title VII be exhausted before a federal employee sues the government in federal court. By enacting § 717, Congress made Title VII the exclusive remedy for federal employees alleging employment discrimination. Brown v. General Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976). As Brown explains, "the balance, completeness, and structural integrity of § 717 are inconsistent with the ... contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief." 425 U.S. at 832, 96 S.Ct. at 1967. Brown goes on to explain that if an identical claim of employment discrimination against the government could be pursued through the less...

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1 books & journal articles
    • United States
    • Stanford Law Review Vol. 51 No. 1, November 1998
    • November 1, 1998
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