Healy v. US Postal Service

• Decision Date: 19 August 1987
• Docket Number: No. CV-86-2640.,CV-86-2640.
• Citation: 677 F. Supp. 1284
• Parties: John M. HEALY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Ralph R. Franzese and J.W. Roberts, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Eastern District of New York

677 F. Supp. 1284

John M. HEALY, Plaintiff, v. UNITED STATES POSTAL SERVICE, Ralph R. Franzese and J.W. Roberts, individually and in their official capacities, Defendants.

No. CV-86-2640.

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

August 19, 1987.

COPYRIGHT MATERIAL OMITTED

Steiner & Masonson, New York City, for plaintiff.

Andrew Maloney, U.S. Atty., Charles Knapp, Asst. U.S. Atty., of counsel, for defendants.

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

Defendants United States Postal Service, Ralph R. Franzese and J.W. Roberts move this court to dismiss the plaintiff's complaint pursuant to Fed.R.Civ.P. 12(c), or in the alternative, for summary judgment pursuant to Rule 56(b). Plaintiff has cross-moved this court to amend his complaint pursuant to Fed.R.Civ.P. 15(c).

FACTS

Plaintiff brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act of 1967 (hereinafter "ADEA"), 29 U.S.C. § 633a, alleging that he was wrongfully denied consideration for promotion on the basis of his race and age. Plaintiff, John M. Healy, has been an employee of the Postal Service and its predecessor, the United States Post Office for approximately thirty-one years. In November 1984, Mr. Fazekas, who was then the General Supervisor of Mails was sent from the Flushing, New York facility to investigate mail processing problems which were occurring at the Main Postal Facility in Jamaica. The plaintiff was and is manager of plant maintenance at the Jamaica Plant. As a result of a report issued by Mr. Fazekas, a meeting was held to discuss mail processing problems at the Jamaica Post Office. At this meeting the plaintiff informed defendant Ralph Franzese and others that the cause of certain machine malfunctions was due to employees throwing refuse into the machines. At subsequent meetings held for similar reasons, the plaintiff reported that machine jamming at the facility was being caused by improper operation by employees. As a result of his participation in these meetings, the plaintiff was given authority over the operation of these machines. The plaintiff continued to report safety and procedure violations to his superiors as well as other plant managers.

In or about December of 1985, the position of Manager of Mail Processing became available at the Jamaica Plant. The plaintiff applied for the position but was turned down. On March 4, 1986, the plaintiff brought a complaint before the Equal Employment Opportunity Commission (EEOC), alleging that he had wrongfully been denied consideration for promotion based on his race and age. Specifically, the plaintiff alleged that the defendants acted to "insure that the position of manager of Mail Processing would be awarded to a block sic male."

The Postal Service, in a final order dated May 20, 1985 and received by the plaintiff on July 8, 1986, closed the plaintiff's case with a finding of no discrimination. The plaintiff commenced this action on August 7, 1986 and served copies of the summons and complaint on the United States Attorney for the Eastern District of New York and the Attorney General of the United States on October 7, 1986. The plaintiff did not serve, nor has he served the Postmaster General of the United States or any of his authorized agents.

DISCUSSION

For the purposes of a Fed.R.Civ.P. 12(b)(6) motion, the facts as alleged by the plaintiff's complaint are taken as true. George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 554 (2nd Cir.1977). The complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). However, even when viewed in the most favorable light, the plaintiff's complaint fails to state a claim.

PLAINTIFF'S TITLE VII CLAIM

Title VII provides federal employees with a cause of action against the United States Government or one of its agencies for any alleged discrimination based on race, color, religion, sex, or national origin. In commencing a civil action against a department of the United States, the "head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c) (1976). To withstand a motion to dismiss a complaint under Title VII, the party bringing the action must name the head of the agency or department as this is the only proper party defendant in a Title VII action. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986); Hall v. Small Business Administration, 695 F.2d 175, 180 (5th Cir.1983); Newbold v. United States Postal Service, 614 F.2d 46, 47 (5th Cir.) (per curiam) cert. denied, 449 U.S. 878, 101 S.Ct. 225, 66 L.Ed.2d 101 (1980); Canino v. Equal Employment Opportunity Commission, 707 F.2d 468, 472 (11th Cir.1983).

In actions against the Postal Service by an aggrieved employee claiming discrimination under Title VII, a motion to dismiss will be proper where the plaintiff has failed to name the head of the United States Postal Service, that is, the Postmaster General of the United States. Cooper v. United States 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); Hymen v. Merit Systems Protection Bd., 799 F.2d 1421, 1422 (9th Cir.1986); McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir.1984); Stewart v. United States Postal Service, 649 F.Supp. 1531, 1535-1536 (S.D.N.Y.1986).

In this action, the plaintiff named the United States Postal Service, Ralph Franzese, the Postmaster of the Jamaica Main Office, and J.W. Roberts, the manager of Mail Processing, as defendants. The plaintiff has not named Preston R. Tisch, the Postmaster General. Since the plaintiff has not complied with the pleading requirements set forth in 42 U.S.C. § 2000e-16(c), his Title VII claim must be dismissed. Furthermore, since the Postmaster General is the only proper defendant the complaint must be dismissed against the United States Postal Service. Cooper v. United States Postal Service, 740 F.2d at 716. The plaintiff's complaint is also dismissed against the defendants Ralph Franzese and J.W. Roberts.

In view of Healy's conceded failure to file a complaint against the Postmaster General within the statutory period, his claim must be barred unless his attempt to substitute the Postmaster General as a defendant relates back to the date his original complaint was filed. Rule 15(c), which governs the relation back of amendments to pleadings states:

Whenever a claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

Prior to 1986, some circuits had construed Rule 15(c) to include a reasonable time after the lapse of a limitations period for the service of process. See Ingram v. Kumar, 585 F.2d 566, 572 (2nd Cir.1978); Kirk v. Cronvich, 629 F.2d 404, 408 (5th Cir.1980). The Supreme Court's literalist interpretation of Rule 15(c) in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986) seems to foreclose this result. Schiavone v. Fortune, 106 S.Ct. 2379 at 2385 (1986).

Given the Supreme Court's holding in Schiavone, an amendment which seeks to name the proper federal defendant will not relate back to the original complaint unless the notice requirement of Rule 15(c) is met. Stewart v. United States, 655 F.2d 741, 742 (7th Cir.1981); Lofton v. Heckler, 781 F.2d 1390 (9th Cir.1986); Hughes v. U.S.A., 701 F.2d 56, 58-59 (7th Cir.1982).

In the present case, the plaintiff received the Postal Service's final decision on his administrative claim on July 8, 1986. However, 42 U.S.C. § 2000e-16(c) allows a claimant only thirty days in which to appeal a final decision by an administrative agency. The plaintiff's failure to name and serve the Postmaster General as the proper party defendant prior to or on August 7, 1986 is fatal to his Title VII claim.

Furthermore, the plaintiff's attempts to serve the United States Attorney for the Eastern District, the United States Attorney General and the Postmaster of the Jamaica Postal Service, even if served within the 30 day period, which did not occur in this case, will not act as substitute service on the Postmaster General. See 39 C.F.R. § 2.2, nor are they proper parties in a Title VII claim against the post office. Cooper, 740 F.2d at 716. Plaintiff argues that the Postmaster General "was on notice that a suit was pending." This court cannot agree. In Cooper v. U.S. Postal Service, 740 F.2d 714 (9th Cir.1984), the court rejected the argument that the Postmaster General had notice of the action because of a prior administrative action. After Schiavone, this court must adhere to the literal interpretation of Rule 15(c)'s notice requirement. The Postmaster General must be given notice of the impending action within the thirty day statutory period. The plaintiff's failure to satisfy the notice requirement requires dismissal of his Title VII claim.

PLAINTIFF'S ADEA CLAIM

Plaintiff also brings a claim under Section 15 of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a, alleging that he was denied consideration for the position of Manager of Mail...