Johnston v. Horne

• Citation: 875 F.2d 1415
• Decision Date: 07 August 1989
• Docket Number: No. 86-3956,86-3956
• Parties: 49 Fair Empl.Prac.Cas. 1806, 50 Empl. Prac. Dec. P 39,056, 51 Empl. Prac. Dec. P 39,354 Donald JOHNSTON; Lola Lovina Johnston, Plaintiffs-Appellants, v. Captain R.B. HORNE, Commander Puget Sound Naval Shipyard, et al., Bremerton Metal Trades Council, a labor organization; John Doe, supervisor, and his Marital Community; International Association of Machinists and Aerospace Workers, Local Lodge 282, a labor organization, Defendants-Appellees. *
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1415

875 F.2d 1415

49 Fair Empl.Prac.Cas. 1806,

50 Empl. Prac. Dec. P 39,056,

51 Empl. Prac. Dec. P 39,354

Donald JOHNSTON; Lola Lovina Johnston, Plaintiffs-Appellants, v. Captain R.B. HORNE, Commander Puget Sound Naval Shipyard, et

al., Bremerton Metal Trades Council, a labor organization;

John Doe, supervisor, and his Marital Community;

International Association of Machinists and Aerospace

Workers, Local Lodge 282, a labor organization,

Defendants-Appellees. ^*

No. 86-3956.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1989.

Decided May 25, 1989.

As Amended on Denial of Rehearing and Rehearing En Banc Aug. 7, 1989.

Mary Ruth Mann and Kenneth R. Shear, Seattle, Wash., for plaintiffs-appellants.

Charles Pinnell, Asst. U.S. Atty., and James D. Beback, Office of Gen. Counsel, U.S. Navy, Seattle, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT, TANG and WIGGINS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Donald Johnston brought a number of claims arising from his employment at the Puget Sound Naval Shipyard.

I

The Shipyard hired him as a toolmaker in 1969. Although hearing impaired, he retained residual hearing and an ability to read lips which allowed him to communicate. He performed satisfactorily during his first five years at the Shipyard.

He failed in 1974 to obtain an outstanding performance award for those first five years and, after that, his productivity declined. He engaged in disruptive and sometimes dangerous behavior, violated shop rules repeatedly and became hostile and antagonistic toward peers and supervisors. A counselor and physicians at the Shipyard dispensary noted his obsession with the failure to obtain the performance award.

Johnston's emotional state deteriorated to the point that he took sick leave in June, 1980. Returning to work on June 18th, the Shipyard required that he see a psychiatrist. He refused.

The Shipyard then requested Johnston's medical retirement. A psychiatrist determined that he suffered from chronic paranoia, rendering him totally and permanently disabled. A second psychiatrist confirmed this diagnosis. The Office of Personnel Management retired him on the basis of this mental disability. The Merit Systems Protection Board affirmed that decision.

Johnston filed charges with the Equal Employment Opportunity Commission alleging that the Shipyard violated the Rehabilitation Act by discriminating against him because of his handicap. He contended that the Shipyard, by failing to accommodate his deafness, caused his agitated emotional state. After the EEOC rejected his claim, he brought this action.

Johnston alleges that the Shipyard discriminated against him in violation of the Rehabilitation Act, retaliated against him because he filed an EEOC complaint, and violated the Privacy Act and the constitution. The district court found for the Shipyard on all claims, determining that he suffered from a paranoid state that prevented him from working. It dismissed his constitutional claims.

II

Johnston brought a handicap discrimination claim against his federal employer alleging that it violated Sec. 501 and Sec. 504 of the Rehabilitation Act.

Before reviewing his claims, we consider if a private cause of action exists and if the district court had jurisdiction. A distinction exists between Sec. 501 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 (1986), and Sec. 504, 29 U.S.C.A. Sec. 794 (West Supp.1989) (hereafter referred to as Sec. 791 and Sec. 794). Both prohibit discrimination on the basis of handicap. Section 791(b) obligates federal employers to provide reasonable accommodation for the handicapped and to develop and implement affirmative action plans for handicapped employees. Carter v. Bennett, 840 F.2d 63, 65 (D.C.Cir.1988); Boyd v. United States Postal Serv., 752 F.2d 410, 412 (9th Cir.1985); Gardner v. Morris, 752 F.2d 1271, 1277-78 (8th Cir.1985). Section 794, in contrast, prohibits the exclusion of "otherwise qualified individuals" from government activities or programs receiving federal funds "solely by reason of their handicap." Mantolete v. Bolger, 767 F.2d 1416, 1421 (9th Cir.1985).

We conclude that a private cause of action exists for the Sec. 791 claim, but that the court was without jurisdiction to hear it and that no private cause of action exists for a federal employee against a federal employer under Sec. 794. We affirm the district court.

A. Section 791 Claim

Congress obligates federal employers under Sec. 791(b) to develop and implement affirmative action plans for handicapped employees and provides under Sec. 794a(a)(1) a private cause of action for violations. Boyd, 752 F.2d at 412-13. Section 791(b) states:

Each department, agency and instrumentality ... in the executive branch shall ... submit to the Equal Employment Opportunity Commission ... an affirmative action program plan for the hiring, placement, and advancement of individuals with handicaps....

Section 794a(a)(1) makes the remedies, procedures and rights of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16 (1983), available to employees alleging a violation of Sec. 791. Section 2000e-16(c) requires that a plaintiff bringing a discrimination claim name the appropriate head of the department, agency or unit within 30-days after receiving a final agency decision. ¹ Koucky v. Department of Navy 820 F.2d 300, 301-02 (9th Cir.1987); Cosgrove v. Bolger, 775 F.2d 1078, 1081 n. 2 (9th Cir.1985); Cooper v. United States Postal Serv., 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). This 30-day period is jurisdictional. Cooper, 740 F.2d at 716 (citing Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1083 (9th Cir.1983)).

Johnston filed a complaint within the required 30-day period. The EEOC on September 21, 1982, issued a final decision on his Rehabilitation Act claims and he received that decision on October 18. He filed this complaint on November 17, 1982, "within thirty days of receipt of notice of final action taken ... by the Equal Employment Opportunity Commission." Secs. 2000e-16(c).

He failed, however, to file a complaint within the statutory period naming the appropriate head of the department, agency or unit. He named Captain Horne, Commander of the Shipyard and not the Secretary of the Navy, who was the appropriate defendant. See Koucky, 820 F.2d at 302 (citing Cooper, 740 F.2d at 715-16).

Johnston discovered his error after the 30-day period expired and moved under Fed.R.Civ.P. 15(c) to amend his complaint to name the appropriate defendant, the Secretary of the Navy. Rule 15(c) governs the relation back of amendments to pleadings.

Whenever the 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.

If a claim arises out of the same conduct, transaction or occurrence as the claim pleaded in the original complaint and if the notice requirements are met, a 15(c) amendment to add the Secretary of the Navy would relate back to the date of the original complaint. If the amendment relates back, Johnston within the 30-day period would have named the appropriate party and he could proceed with his action. See Cooper, 740 F.2d at 716.

Rule 15(c) cannot correct Johnston's error because the Secretary of the Navy did not, as required by 15(c), receive notice within the 30-day limitation period. The Rule applies only when the substituted party "within the period provided by law for commencing the action" received "notice of the institution of the action." See Schiavone v. Fortune, 477 U.S. 21, 29-31, 106 S.Ct. 2379, 2384-85, 91 L.Ed.2d 18 (1986) ("Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party."); Koucky, 820 F.2d at 302 (Secretary of Navy did not have notice within 30-day limit; therefore, plaintiff cannot take advantage of 15(c)); Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987) (no government official served within 30-day period thus failure to name proper defendant cannot be cured by 15(c) amendment); Cooper, 740 F.2d at 717 (failure to notify substitute defendant of action until after statutory period had run precludes application of 15(c)).

We note that, if Johnston did not know whom to name, service of process on the United States Attorney or Attorney General of the United States would have satisfied the notice provision of Rule 15(c). ² Cooper. 740 F.2d at 717. He did not serve the United States Attorney until after the 30-day limitation period expired.

Johnson contends also that the Secretary of the Navy was not the only appropriate defendant. He argues that the Commander of the Puget Sound Naval Shipyard qualified as head of an agency under Sec. 2000e-16(c) and that he, too, was a proper defendant. We disagree.

The Puget Sound Naval Shipyard is not an agency as defined in Sec. 2000e-16(a). An "agency" is an "executive agency" defined as "an Executive Department, a Government corporation, [or] an independent establishment." 5 U.S.C. Sec. 105. An ...