Gonzales v. Secretary of Air Force
| Citation | 824 F.2d 392 |
| Decision Date | 18 August 1987 |
| Docket Number | No. 86-1609,86-1609 |
| Parties | 44 Fair Empl.Prac.Cas. 971, 44 Empl. Prac. Dec. P 37,325, 8 Fed.R.Serv.3d 825 Joe T. GONZALES, Plaintiff-Appellant, v. SECRETARY OF the AIR FORCE and the Department of the Air Force, Defendants- Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John E. Tobin, Dorsey & Whitney, Edward J. Pluimer, Patricia C. Hayashi, New York City, George A. Gonzales, Abilene, Tex., Richard T. Seymour, Wm. L. Robinson, Lawyers' Committee for Civil Rights, Washington, D.C., for plaintiff-appellant.
Jay L. Cohen, Major, U.S. Air Force, Washington, D.C., Marvin Collins, U.S. Atty., Charles Ory and Stafford Hutchinson, Asst. U.S. Attys., Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, REAVLEY and JOLLY, Circuit Judges.
In this employment discrimination action, the appellant, Joe T. Gonzales, argues that the district court erred in dismissing his complaint for his failure to sue the proper party within the required thirty-day statutory filing period. Based on the Supreme Court's decision in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the district court held that Gonzales's amendment to his complaint naming the Secretary of the Air Force ("the Secretary") as a defendant, the only proper party sued or served, did not relate back under Fed.R.Civ.P. 15(c) to the original date of the filing. We affirm.
In December 1980, the Department of the Air Force ("the Department") did not select Gonzales for a warehouse-foreman position at Goodfellow Air Force Base in Texas. Claiming discrimination on the basis of race and national origin, Gonzales filed a timely formal administrative claim on January 7, 1981. During the next four years, he diligently pursued his administrative remedies in accord with Department instructions and procedures. After exhausting his administrative remedies, Gonzales filed suit in the district court pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq., naming the Department as the sole defendant. Gonzales filed his federal court complaint against the Department within the thirty-day statutory filing period as required by 42 U.S.C. Sec. 2000e-16(c). 1 He served process on the Department on April 30, 1985, which was after the thirty-day filing period had expired, and served the United States Attorney on July 24, 1985.
On April 30, 1986, the Department moved to dismiss Gonzales's complaint, arguing that Gonzales had not complied with 42 U.S.C. Sec. 2000e-16(c) because he failed to sue the Secretary within thirty days of receiving notice of the final decision of the Equal Employment Opportunity Commission ("EEOC"). Gonzales requested and was granted leave to amend his complaint, adding the Secretary as a defendant. Based on precedent in this circuit that interpreted Fed.R.Civ.P. 15(c) 2 liberally, Hendrix v. Memorial Hosp. of Galveston County, 776 F.2d 1255 (5th Cir.1985), Kirk v. Cronvich, 629 F.2d 404 (5th Cir.1980), the district court held that notwithstanding Gonzales's failure to sue and serve the Secretary within thirty days of receiving the EEOC's final decision, he could amend his complaint to add the Secretary as a defendant. Under Hendrix, the amendment would relate back "to the original filing date of the complaint even though it [took] a reasonable amount of time after the limitations period to serve process upon the original party defendant." Hendrix, 776 F.2d at 1257.
After the district court granted leave to amend the complaint, the Supreme Court rendered its decision in Schiavone, 106 S.Ct. 2379. The district court granted the defendants' motion to reconsider its previous order, and, based on Schiavone, granted the defendants' motion to dismiss Gonzales's complaint. Gonzales v. Secretary of the Air Force, 638 F.Supp. 1323 (N.D.Tex.1986). The court held that because Gonzales did not serve the Department within the required thirty-day statutory period, there was no proper notice to the Department that could be imputed to the Secretary. Because no notice was given before the time limitation had expired, Gonzales could not amend his complaint to sue the proper party, and his complaint was dismissed. Id. at 1325. Gonzales appealed.
The district court correctly held that this case is controlled by Schiavone. In Schiavone, the plaintiffs timely sued Fortune Magazine for libel within New Jersey's one-year statute of limitations. "Fortune," however, was only a trademark and the name of an internal division of Time, Incorporated ("Time"). The plaintiffs then attempted to serve process on Time's registered agent in New Jersey. The agent refused service because Time was not a named defendant in the suit. After the statutory filing period had expired, the plaintiffs amended their respective complaints to add Time as a defendant, and subsequently served process on Time. The district court dismissed the complaint, holding that the amendment did not relate back to the date of the original filing under Rule 15(c) because Time did not receive notice of the institution of the libel actions "within the period provided by law for commencing the action against [it]." Schiavone, 106 S.Ct. at 2381-82.
The Supreme Court affirmed and set forth four factors upon which "relation back" of an amended pleading under Rule 15(c) depends:
(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.
Id. at 2384. The Court clearly stated that all four factors must be satisfied before relation back will apply. Id.
Like the plaintiffs in Schiavone, Gonzales has satisfied the first factor; the problem in this case lies with his satisfaction of the remaining factors. Reviewing the record, we have determined that the following dates are critical in the disposition of this case: (1) Gonzales received notice of the final agency decision on March 15, 1985, and he filed suit against the Department on April 12, 1985, within the thirty-day statutory time period; (2) on April 30, 1985, Gonzales served process on the Department, which was after the thirty-day time period had expired; (3) Gonzales served the United States Attorney on July 24, 1985; (4) the court permitted Gonzales to amend his complaint, adding the Secretary as a defendant, on May 21, 1986; and (5) Gonzales served the amended complaint on the Secretary on June 2, 1986.
The record thus shows that the means Gonzales used for notifying the defendants of his federal action was service of process on the Department, the United States Attorney, and the Secretary. As the above dates indicate, however, each party received this notice after expiration of the prescribed thirty-day limitations period of 42 U.S.C. Sec. 2000e-16(c).
The question before us, therefore, is whether the amendment adding the Secretary, the only proper defendant in this case, can relate back under Rule 15(c) to the original filing of the complaint so as to make the complaint against the Secretary timely. According to Schiavone, we must determine (1) whether the Secretary had sufficient notice of Gonzales's federal lawsuit such that no prejudice will result to the Secretary in maintaining his defense; and (2) whether the Secretary knew or should have known that the action brought against the Department would have been brought against him but for Gonzales's mistake concerning the named defendant in his complaint. Schiavone further instructs us that these two considerations must have been satisfied within the thirty-day limitations period of 42 U.S.C. Sec. 2000e-16(c).
The indisputable facts show that Gonzales gave notice to the Secretary of this Title VII action by serving process on the Secretary on June 2, 1986, more than one year after the thirty-day limitations period had expired. No colorable argument can be made that this belated notice satisfies the second and fourth factors of the Schiavone test. Furthermore, Gonzales's notice to the Department and the United States Attorney by service of process was also received after the prescribed limitations period. Having failed to notify the Department and the United States Attorney within the thirty-day period, Gonzales cannot argue, under Schiavone's third factor, that knowledge of his federal lawsuit is imputed to the Secretary. Because Gonzales failed to notify any party of this action within the statutory period, the Secretary could not have known that an action would have been brought against him but for Gonzales's mistake in naming the proper defendant. Gonzales has failed to satisfy the second, third and fourth factors of the Schiavone test and we hold, therefore, that the amended complaint did not relate back under Rule 15(c) to the original date of the filing of the action.
Gonzales argues, however, that the Secretary had "both formal and informal notice of Mr. Gonzales's action through the Air Force's active involvement at every stage of the administrative process." Brief for Appellant at 22. According to Gonzales, because the Department and the Secretary had detailed knowledge of the more than four years of administrative litigation, the defendants were on notice that Gonzales would continue to seek relief in federal court. Although there is no dispute that Gonzales and the Department were involved in lengthy administrative battles for a number of years, the mere fact that administrative proceedings occurred cannot be construed as any kind of notice, whether "formal" or "informal," 3 of a subsequent federal...
To continue reading
Request your trial
-
Lopez v. Louisiana Nat. Guard, Civ. A. No. 89-4446.
...cure such a jurisdictional defect, see Brown v. Department of Army, 854 F.2d 77, 79 (5th Cir.1988) (following Gonzales v. Secretary of the Air Force, 824 F.2d 392 (5th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988)). 11 Under 29 C.F.R. pt. 1613, there are four ......
-
Johnson v. U.S. Postal Service
...General with informal or constructive notice. The dissenting opinion in an analogous case, Gonzales v. Secretary of Air Force, 824 F.2d 392 (5th Cir.1987) (Brown, J., dissenting), It is important to remember that even if the Secretary had been the named party, he, personally, probably never......
-
Honeycutt v. Long
...the Rule as meaning what it says. Id. at 30, 106 S.Ct. at 2385. This Court has applied the Schiavone factors in three recent decisions. Gonzales, supra; Brown v. Department of the Army, 854 F.2d 77 (5th Cir.1988); Lamb v. United States Postal Service, 852 F.2d 845 (5th Cir.1988). In these c......
-
Hollcroft v. Department of Treasury, IRS
...prejudice can be demonstrated. The reason for this is best stated by Judge Brown in his dissenting opinion in Gonzales v. Secretary of the Air Force, 824 F.2d 392 (5th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1245, 99 L.Ed.2d 443 It is important to remember that even if the Secretar......