Drayton v. Veterans Admin.

Decision Date25 February 1987
Docket NumberNo. 86 CIV. 6270 (PKL).,86 CIV. 6270 (PKL).
Citation654 F. Supp. 558
PartiesSaundra DRAYTON, Plaintiff, v. VETERANS ADMINISTRATION, VA Bronx Medical Center, Richard Mohs, Kenneth Davis, Daniel Kowalski, Christopher Giovine and Mt. Sinai Medical Center, Defendants.
CourtU.S. District Court — Southern District of New York


Edwin F. Lambert, Jr., Rockville Centre, N.Y., for plaintiff.

Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Jordan Stanzler, Asst. U.S. Atty., of counsel, for defendants.


LEISURE, District Judge:

Plaintiff Saundra Drayton, a black female, brought this action against defendants Veterans Administration ("VA"), Bronx Medical Center, Richard Mohs, Kenneth Davis, Daniel Kowalski, Christopher Giovine and Mt. Sinai Medical Center, pursuant to 42 U.S.C. §§ 2000e et seq. and 1983.1 Plaintiff claims that she was discriminated against on the basis of race and sex when she was not selected to fill either of two positions at the VA. The action is now before the Court upon defendants' motion for an order dismissing the complaint, pursuant to Fed.R.Civ.P. 12(b) (1), (2), (4), (5), (6), and (7); or, in the alternative, for an order granting summary judgment against plaintiff, pursuant to Fed.R.Civ.P. 56(b). For the reasons set forth below, defendants' motion is granted. The action is dismissed in its entirety.


Plaintiff filed an informal complaint of discrimination on December 20, 1982, with the VA, alleging that she was discriminated against on the basis of race when she was not selected for either of two positions at the VA Medical Center in the Bronx, New York. After receiving counseling, plaintiff filed a formal complaint on July 25, 1983. The complaint alleged discrimination on the basis of race in not being selected for two positions in the Medical Center's Psychiatric Research Unit.

Plaintiff's claim was investigated; efforts at conciliation were unsuccessful. A hearing was held before the Equal Employment Opportunity Commission ("EEOC") on August 26 and 27. The Attorney-Examiner of the EEOC made a recommended decision, dated November 1, 1985, that plaintiff had been discriminated against.

The VA rejected the recommended decision. On July 11, 1986, Neal C. Lawson, Assistant General Counsel of the VA, wrote to plaintiff, informing her of the VA's position. The letter also informed plaintiff that she could either appeal the decision of the VA to the EEOC or, "in lieu of an appeal" to the EEOC, she could "file a civil action in an appropriate U.S. District Court within 30 days of receipt of receipt of the decision." Affirmation of Jordan Stanzler, Assistant United States Attorney, dated December 10, 1986, Exhibit C. This letter constituted the final VA action regarding plaintiff's claim.

Plaintiff's counsel received a copy of the Final Decision of the VA and Mr. Lawson's letter on July 14, 1986; plaintiff received same on July 23, 1986.

Plaintiff filed her complaint in this Court on August 13, 1986. The complaint alleged discrimination on the basis of race and sex. Plaintiff asserted jurisdiction under 42 U.S.C. §§ 2000e and 1983. The complaint named as defendants the VA, the VA Bronx Medical Center, and four federal employees, named in both their individual and official capacities.

The complaint was served upon District Counsel for the VA and the Bronx VA Medical Center on September 3, 1986. Affirmation of Edwin F. Lambert, Jr., Esq., dated January 3, 1987, Exhibit 2. Service has never been made upon the Attorney General of the United States or upon the United States Attorney. Nor has plaintiff provided any documentary evidence that service was effected on the individual defendants.


Defendants contend that the complaint must be dismissed because it did not name the proper party as a defendant and was not properly served. Defendants further argue that these errors cannot be corrected by the filing of an amended pleading, adding the proper defendant, because the complaint was not served within the thirty-day statute of limitations period provided in 42 U.S.C. § 2000e-16(c). Therefore, defendants seek dismissal of the complaint with prejudice. Defendant also notes that plaintiff cannot bring this action pursuant to 42 U.S.C. § 1983 because that statute applies only to actions against state officials. The final contention advanced by defendants is that plaintiff cannot pursue allegations of sex discrimination because these allegations were not raised in the prior administrative proceedings.

Plaintiff offers no reason for her failure to name the proper party defendant in this action. Plaintiff also concedes that she did not serve the complaint in a timely manner. However, plaintiff argues that she did not effect service in a proper manner because she was "tricked" by defendants. Moreover, plaintiff contends that she alleges a "continuing violation" under Title VII and is, therefore, not barred by the thirty day statute of limitations.2

The Proper Party

It is well settled that "the United States, as sovereign, `is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1967) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1951)); Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1976). Thus, as a threshold matter, plaintiff's action against the VA is barred for lack of subject matter jurisdiction unless she can demonstrate that the United States has, by statute, "`unequivocally expressed'" a waiver immunity in suits such as this one. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969)). In the event that there is statutory consent, courts must strictly construe such consent and the regulations promulgated thereunder. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979); Sherwood, supra, 312 U.S. at 586, 61 S.Ct. at 769; Altman v. Connally, 456 F.2d 1114, 1116 (2d Cir. 1972); Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.1971).

The United States has waived its sovereign immunity regarding employment discrimination claims only to the extent that such claims are made against "the head of the department, agency, or unit, as appropriate...." 42 U.S.C. § 2000e16(c). See Stephenson v. Simon, 427 F.Supp. 467, 470-71 (D.D.C.1976). Such official's name need not be used in pleading; it is sufficient if he is named by official title, unless there is some claim for personal relief against the agency official under one of the related civil rights statutes of the Constitution. See Fed.R.Civ.P. 25(d)(2). Furthermore, under § 2000e-16(c), an applicant for federal employment has thirty days, from receipt of the notice of the final action taken by the agency, to file suit against the head of that agency.3

It is clear from the language of § 2000e-16(c) that suit must be brought against the head of the agency, in the instant action, Thomas Turnage, head of the VA. Turnage is the only proper defendant in this discrimination action. An action may not be brought against the agency itself or against its lower level federal employees. See, e.g., Hackley v. Roudebush, 520 F.2d 108, 115 (D.C.Cir.1975); Cooper v. U.S. Postal Service, 740 F.2d 714, 716 (9th Cir. 1984), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985); Hall v. Small Business Admin., 695 F.2d 175, 180 (5th Cir.1983); McGuinness v. U.S. Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984); Canino v. EEOC, 707 F.2d 468, 472 (11th Cir.1983); Dean v. United States, 484 F.Supp. 888, 889-90 (D.N.D.1980); Nolan v. Cleland, 482 F.Supp. 668, 672 (N.D. Cal.1979) (dismissing action against supervisory officials of VA), aff'd in part, rev'd in part, 686 F.2d 806 (9th Cir.1982); Stephenson, supra 427 F.Supp. at 470-71; Carver v. Veterans Administration, 455 F.Supp. 544, 545-546 (E.D.Tenn.1978); Quillen v. U.S. Postal Service, 564 F.Supp. 314, 321 (E.D.Mich.1983) (claim against employee's supervisor dismissed); accord Langster v. Schweiker, 565 F.Supp. 407, 412 (D.Ill. 1983).

Plaintiff does not tender an excuse for her failure to name the proper party defendant. Therefore, the complaint in this action against the VA, the VA Bronx Medical Center and the individual federal employees — Mohs, Davis, Kowalski, and Giovine — should be dismissed because plaintiff failed to name the head of the VA as a party.

The Statute of Limitations and Service of Process

Federal Rules of Civil Procedure 4 and 5 provide for service of process against the United States and its agencies. Rule 4 provides that:

(d) Summons and Complaint: Person to be served....
(4) Upon the United States, by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court and by sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency.
(5) Upon an officer or agency of the United States, by serving the United States and by sending a copy of the summons and of the complaint by registered or certified mail to such officer or agency.


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