Edinboro v. Department of Health & Human Services

• Decision Date: 20 December 1988
• Docket Number: No. 87 Civ. 2795 (SWK).,87 Civ. 2795 (SWK).
• Citation: 704 F. Supp. 364
• Parties: Gregory I. EDINBORO, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — Southern District of New York

704 F. Supp. 364

Gregory I. EDINBORO, Plaintiff, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

No. 87 Civ. 2795 (SWK).

United States District Court, S.D. New York.

December 20, 1988.

Kipp Elliott Watson, New York City, for plaintiff.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City by Gabriel W. Gorenstein, for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Presently before this Court for review is the Report and Recommendation ("Report") by United States Magistrate Francis dated May 9, 1988. The above captioned case was referred by this Court to Magistrate Francis to recommend whether this Court should grant the Department of Health and Human Services' ("HHS") motion to dismiss the complaint, or alternatively, to grant summary judgment. Magistrate Francis recommended that this Court grant HHS's motion for summary judgment dismissing the complaint, and this Court conducted a de novo review of the Magistrate's Report pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure.

Plaintiff Gregory I. Edinboro ("Edinboro") named an improper party in his original complaint and is now barred by the limitations period from amending his complaint to name the proper defendant. Edinboro's primary objection is that the Magistrate rejected his claim that the relation-back period extends the relevant notice period, which is also subject to equitable modification. In addition, Edinboro requests a reasonable opportunity to engage in discovery to disclose other bases for modification.

Background

Edinboro brought this action under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., ("the Act"), charging his employer HHS with employment discrimination due to an alleged handicap. From 1981 Edinboro was a Social Security Administration claims representative until his demotion to the position of service representative on April 30, 1986. Edinboro appealed this demotion to the Merit System Protection Board ("MSPB"), which affirmed the demotion on March 27, 1987, concluding that Edinboro had not been discriminated against in violation of the Act, and that he did not have a handicap, 33 M.S.P.R. 91. The MSPB decision also contained a notice to Edinboro of his right to sue. This notice to sue informed Edinboro that he could either petition the Equal Employment Opportunity Commission ("EEOC"), or that he could initiate a civil suit in the United States District Court no later than thirty days from receipt of the March 27, 1987 MSPB decision. It did not specify that Edinboro could not sue HHS directly in this Court, but that he had to name the Secretary of HHS.

Pursuant to this notice, Edinboro filed a complaint in this Court on April 24, 1987, which challenged his demotion but erroneously named HHS as the defendant. Although Edinboro received notice of the MSPB's decision on March 27, 1987, he waited until August 21, 1987 to serve his first complaint, which was nearly four months after the expiration of the thirty-day period. Edinboro later amended his complaint to name the Secretary of HHS, Otis Bowen, the proper defendant. This amended complaint also alleged acts of discrimination by HHS which were not raised previously. On November 9, 1987, Edinboro served a copy of the amended complaint on HHS. This amended complaint was finally filed with this Court on March 4, 1988.

DISCUSSION

The Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., incorporates the procedural requirements for suits under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16. See 29 U.S.C. § 794a(a)(1). In order to commence an action in district court under Title VII, a federal employee alleging discrimination may bring suit only against "the head of the department, agency or unit". 42 U.S.C. § 2000e-16(c). An action may not be brought against the agency itself. Drayton v. Veterans Admin., 654 F.Supp. 558, 562 (S.D.N.Y.1987); Cooper v. U.S. Postal Service, 740 F.2d 714, 715-16 (9th Cir.1984), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 316 (1985). Any federal employee seeking judicial review of an MSPB decision must file a civil action within thirty days after the claimant receives notice of the adverse MSPB decision. See 5 U.S.C. § 7703(b)(2). Plaintiff's amended complaint was not filed until March 4, 1988 — eleven months after the expiration of the same period.

Edinboro argues that the statutory thirty-day filing period of § 7703(b)(2) for commencing a civil suit in district court is not jurisdictional, but instead is a statute of limitations subject to equitable modification. The Second Circuit has not decided whether this statutory period is jurisdictional. The Circuits that have decided this issue have held that the thirty-day time limit of § 7703(b)(2) is a jurisdictional prerequisite to filing a suit in district court. King v. Dole, 782 F.2d 274, 275-76 (D.C. Cir.1986), cert. denied, 479 U.S. 856, 107 S.Ct. 194, 93 L.Ed.2d 126 (1986); Hilliard v. U.S. Postal Service, 814 F.2d 325, 327 (6th Cir.1987); Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986); see also, Taylor v. Tisch, 686 F.Supp. 304, 308 (S.D.Fla. 1988). Under a minority viewpoint, other courts have declined to rule whether the thirty-day requirement is jurisdictional or subject to equitable modification. James v. U.S. Postal Service, 835 F.2d 1265, 1267 (8th Cir.1988) (upheld district court's dismissal of plaintiff's employment discrimination complaint stating that even if the requirements for commencing an action in district court were subject to equitable tolling, the fact that plaintiff was pro se did not justify equitable modification), Lee v. U.S. Postal Service, 774 F.2d 1067, 1068 (11th Cir.1985) (upheld district court's dismissal of plaintiff's complaint holding that even if timely filing is not jurisdictional and is subject to equitable modification, plaintiff's allegations of ineffective counsel does not satisfy the doctrine).

The District of Columbia Circuit based its King decision on two factors. King, supra, 782 F.2d at 276. First, it reasoned that the timeliness provision of an analogous section — 5 U.S.C. § 7703(b)(1) — is in fact a jurisdictional time limit,¹ and therefore, that § 7703(b)(2) should be similarly construed. Id. at 276. The court explained that Congress left no doubt as to the mandatory nature of the time limit "by providing that `notwithstanding any other provision of law, any such case filed ... must be filed within thirty days after the date the individual filing the case received notice of the judicially reviewable action.'" Id. at 276 (quoting 5 U.S.C. § 7703(b)(2)).

In a case interpreting the doctrine of equitable modification, the Supreme Court outlined circumstances that might justify equitable tolling. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151-52, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984), reh'g denied, 467 U.S. 1231, 104 S.Ct. 2691, 81 L.Ed.2d 885 (1984). These circumstances include situations where (1) a claimant has received inadequate notice, or (2) where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, or (3) where the court has led the plaintiff to believe that plaintiff had done everything required, or (4) where the affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. Baldwin County Welcome Center, supra, 466 U.S. at 151-52, 104 S.Ct. at 1725-26. Edinboro has not alleged, and this Court does not find, that any of these circumstances exist in the present case. Furthermore, a litigant "who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence." Id. This Court finds no excuse for Edinboro's failure to serve the original complaint until August 21, 1987. Consequently, this Court need not reach the issue of whether § 7703(b)(2) is jurisdictional because even if the thirty-day period of § 7703(b)(2) may be subject to tolling, the facts do not warrant tolling in this case.²

Alternately, Edinboro argues that under Drayton, supra, 654 F.Supp. at 567, the doctrine of continuing violations may be applied to toll the thirty-day filing requirement.³ To satisfy the continuing violations doctrine a plaintiff must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the limitations period." Id. at 567. According to Drayton, a plaintiff can show such a continuing violation only if two requirements exist. Id. at 567. First, the complaint must allege a present and ongoing violation of Title VII. Id. at 567. Second, the plaintiff may not evade Title VII's stringent time limits merely by characterizing a completed act as a continuing violation. Id. at 567. The Drayton court held that the requirements for a continuing violation were not met where the plaintiff was denied positions at the V.A. Medical Center on only two occasions. Even if the thirty-day filing period may be tolled by the doctrine of continuing violations, Edinboro fails to demonstrate that the doctrine applies here. The gravamen of this case, which is a single demotion, does not constitute a continuing course of action. In addition, the Court finds no evidence that a discriminatory system existed before and during the thirty-day period. Since Edinboro cannot meet the requirements for establishing a continuing violation, Edinboro's complaint must be dismissed, as it was not initiated against the proper defendant within thirty days of receipt of the right to sue letter and there is no basis for tolling this period.

Edinboro received notice of the MSPB decision and his right to sue on March 27, 1987. The thirty-day period expired on April 26, 1987. Although Edinboro filed his complaint in this Court within this time period, he did not serve until August 21, 1987. In addition, Edinboro failed to name and serve the proper def...