Lubniewski v. Lehman

• Decision Date: 06 December 1989
• Docket Number: No. 88-1786,88-1786
• Citation: Lubniewski v. Lehman, 891 F.2d 216 (9th Cir. 1989)
• Parties: 54 Fair Empl.Prac.Cas. (BNA) 1409, 52 Empl. Prac. Dec. P 39,500, 58 USLW 2365 Lydia LUBNIEWSKI, Plaintiff-Appellant, v. John F. LEHMAN Jr., Secretary of the Navy, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 216

891 F.2d 216

54 Fair Empl.Prac.Cas. (BNA) 1409,

52 Empl. Prac. Dec. P 39,500, 58 USLW 2365

Lydia LUBNIEWSKI, Plaintiff-Appellant, v.John F. LEHMAN Jr., Secretary of the Navy, Defendant-Appellee.

No. 88-1786.

United States Court of Appeals Ninth Circuit.

Argued April 14, 1989.

Submitted Oct. 2, 1989.

Decided Dec. 6, 1989.

Elaine W. Wallace, Oakland, Cal., for plaintiff-appellant.

Elizabeth K. Trager, Asst. U.S. Atty., San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WIGGINS and KOZINSKI, Circuit Judges, and MARSH, District Judge.^*

WIGGINS, Circuit Judge:

Lydia Lubniewski, an employee of the United States Navy, appeals the dismissal of her discrimination claims under Title VII of the Civil Rights Act of 1964(Title VII), 42 U.S.C. § 2000e et seq.(1982) and the Age Discrimination in Employment Act (ADEA),29 U.S.C. §§ 621-634(1982 & Supp. IV 1986).The district court dismissed Lubniewski's claims for lack of subject matter jurisdiction because Lubniewski failed to file an action naming the proper defendant within the thirty-day time period prescribed by 42 U.S.C. § 2000e-16(c)(1982).We have jurisdiction under 28 U.S.C. § 1291(1982).We affirm the dismissal of Lubniewski's Title VII claim.Previous decisions of this court have construed section 2000e-16(c)'s time period as jurisdictional.We reverse the dismissal of the ADEA claim.Section 2000e-16(c)'s time period does not apply to federal employee ADEA claims.

I

Lubniewski complained to the Navy of age and sex discrimination following the Navy's decision not to select her to be a program analyst.The Navy denied her complaint.The Equal Employment Opportunity Commission(EEOC) affirmed the Navy's decision.On July 10, 1987, Lubniewski received a copy of the EEOC's decision and a right to sue letter.The letter warned Lubniewski that she had thirty days under section 2000e-16(c) to file a Title VII action in federal court, but that for claims brought under the ADEA, she"MAY have up to six years after the right of action first accrues in which to file a civil action."(Emphasis in original).

On July 29, 1987, Lubniewski filed, pro se, a form complaint provided by the district court naming the Department of the Navy, rather than the Secretary of the Navy, as defendant.Lubniewski v. Department of the Navy, 682 F.Supp. 462, 463(N.D.Cal.1988).Lubniewski alleged claims under both Title VII and the ADEA.She attached to the complaint copies of the EEOC's decision and her right to sue notice.Lubniewski did not serve this complaint.Lubniewski eventually obtained counsel, who filed an amended complaint properly naming the Secretary as the defendant and served summons on the Secretary on August 21, 1987, forty-one days after the EEOC notified Lubniewski of its decision.

The government moved to dismiss Lubniewski's claims on the ground that she failed to file a complaint naming the Secretary, the proper defendant under section 2000e-16(c), within that section's thirty-day filing period.Recognizing that in this circuit naming the proper defendant within thirty days is a jurisdictional requirement under Title VII, the district court granted the government's motion.Lubniewski, 682 F.Supp. at 464(citations omitted).The district court did not specifically address the applicability of section 2000e-16(c) to Lubniewski's ADEA claim.We review de novo the district court's dismissal of Lubniewski's claims for lack of subject matter jurisdiction.Lofton v. Heckler, 781 F.2d 1390, 1392(9th Cir.1986).

II

A.The Title VII Claim

A plaintiff must file a Title VII complaint against the government within thirty days of receiving notice of an agency's final action, and the complaint must name the agency head as the defendant.42 U.S.C. § 2000e-16(c)(1982);¹seeKoucky v. Department of the Navy, 820 F.2d 300, 301(9th Cir.1987);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).Lubniewski did not comply with the requirements of Section 2000e-16(c).She argues that we should construe the thirty-day period as a statute of limitations and hold it tolled in this case because she was misled concerning the identity of the proper defendant by both the EEOC's right to sue letter ² and the district court's form-complaint.

We agree with Lubniewski that the language of the EEOC right to sue notice is ambiguous.As the Eighth Circuit recently noted in reviewing an identical notice, various interpretations of its language are possible: "The underscored language can be read as requiring the plaintiff to name either the agency or its head; it is unclear whether 'head' modifies only 'department' or also 'agency,' and the remainder of the letter leaves this ambiguity unresolved."Warren v. Department of the Army, 867 F.2d 1156, 1160(8th Cir.1989).We join those courts that have considered the ambiguity of the government's notification letter and urge the appropriate agencies to redraft their notices to reflect accurately a plaintiff's obligation to name as defendant the head of the department or the head of the agency.SeeMondy v. Department of the Army, 845 F.2d 1051, 1052 n. 1(D.C.Cir.1988);Williams v. Army & Air Force Exchange Serv., 830 F.2d 27, 31(3rd Cir.1987).

We have, however, held that naming the proper defendant within thirty days is a jurisdictional requirement and is not subject to equitable tolling, waiver, or estoppel.See, e.g., Koucky, 820 F.2d at 302;cf.Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421, 1422(9th Cir.1986)(naming proper defendant within the thirty-day period is a jurisdictional requirement under 5 U.S.C. § 7703(b)(2)(1982) for bringing Title VII claims against the government initially brought before the Merit Systems Protection Board), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506(1987).We are bound by that holding.

Lubniewski also argues that we should not strictly enforce section 2000e-16(c)'s requirement that she name the Secretary as defendant because his identity as the proper defendant was readily ascertainable from her complaint and the EEOC right to sue letter which she attached to it.We have previously held that a pro se plaintiff may satisfy the proper defendant requirement by attaching the administrative disposition of her discrimination complaint to a timely filing.Rice v. Hamilton Air Force Base Commissary, 720 F.2d 1082, 1085(9th Cir.1983).

Unlike the plaintiff in Rice, however, Lubniewski did not attach to her complaint a copy of the administrative disposition of her claims.She attached copies of the EEOC decision and her right to sue letter.This difference is critical.An administrative disposition is from the Secretary himself and provides a clue that he is the proper defendant.Lubniewski's EEOC decision and her right to sue notice, on the other hand, list the Department of the Navy as defendant.They provide no clue that the Secretary is the proper defendant.

Lubniewski recognizes this difference, but reminds us that we should be "guided by the principle that '[t]he Equal Employment Opportunity Act is a remedial statute to be liberally construed in favor of the victims of discrimination.' "Rice, 720 F.2d at 1084(quotingMahroom v. Hook, 563 F.2d 1369, 1375(9th Cir.1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2234, 56 L.Ed.2d 402(1978))."Title VII should not be unnecessarily interpreted in an overly technical fashion that will prevent an adjudication on the merits."Id.We are unable to adopt the broad interpretation of Rice that Lubniewski advances.To do so would eviscerate the proper defendant requirement from Title VII.

Lubniewski alternatively contends that the substitution of the Secretary as the defendant in her amended complaint should relate back, under Fed.R.Civ.P. 15(c), to the date she filed her original complaint.³Lubniewski, however, does not satisfy the requirements of Rule 15(c).Lubniewski did not serve her original complaint on the Department of the Navy within the thirty-day period.Thus, there was no timely notice to the Navy that could be imputed to the Secretary."Under Fed.R.Civ.P. 15(c), the proper defendant must be provided actual notice of the action within the statutory limitations period in order for the amendment to relate back to the date of the initial filing.This notice requirement is to be strictly construed."Hymen, 799 F.2d at 1422;seeSchiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 2384-85, 91 L.Ed.2d 18(1986);Koucky, 820 F.2d at 302;Cooper, 740 F.2d at 716.

Lubniewski finally argues that section 2000e-16(c)'s thirty-day filing deadline violates equal protection.We find no merit in this argument.

The district court properly dismissed Lubniewski's Title VII claim.

B.The ADEA claim

Section 15(c) of the ADEA,29 U.S.C. § 633a(c), allowed Lubniewski to bring a civil action for enforcement after the EEOC affirmed the Navy's rejection of her administrative complaint.Section 633a does not, however, specify a deadline for filing such an action.The district court assumed that Title VII's thirty-day deadline applies.The government believes that this is a sensible rule because Congress ordinarily does not intend to create actions without time limits, DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476(1983), andTitle VIIandADEA share common purposes, Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609(1979).⁴But Lubniewski argues that Congress intended Title VII's thirty-day filing period not to apply to federal employee ADEA claims.

Courts have often consulted Title VII for assistance in interpreting analogous provisions of the ADEA.See, e.g., Lehman v. Nakshian, 453 U.S. 156, 163-64, 101 S.Ct. 2698, 2703, 69 L.Ed.2d 548(1981)(like Title VII, ADEA...