Rys v. U.S. Postal Service, 89-1234

• Decision Date: 02 August 1989
• Docket Number: No. 89-1234,89-1234
• Citation: 886 F.2d 443
• Parties: 53 Fair Empl.Prac.Cas. 322, 51 Empl. Prac. Dec. P 39,374, 14 Fed.R.Serv.3d 1199 John E. RYS, Jr., Plaintiff, Appellant, v. U.S. POSTAL SERVICE, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 443

886 F.2d 443

53 Fair Empl.Prac.Cas. 322,

51 Empl. Prac. Dec. P 39,374, 14 Fed.R.Serv.3d 1199

John E. RYS, Jr., Plaintiff, Appellant, v. U.S. POSTAL SERVICE, et al., Defendants, Appellees.

No. 89-1234.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1989.

Decided Sept. 26, 1989.

Fred A. McCoy, for plaintiff, appellant.

Dina Michael Chaitowitz, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Stephen E. Alpern, Associate General Counsel, U.S. Postal Service, and David G. Karro, Office of Labor Law, U.S. Postal Service were on brief, for defendants, appellees.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, GARRITY, ^* Senior District Judge.

BOWNES, Circuit Judge.

John E. Rys, Jr., appeals from the district court's dismissal of his Title VII discrimination action against the United States Postal Service. See 42 U.S.C. Sec. 2000e-16. The district court found that Rys had failed to sue the proper party within the 30-day time limit prescribed by 42 U.S.C. Sec. 2000e-16(c). Rys acknowledges this failure but argues that the district court should have tolled the statute of limitations due to equitable considerations. We disagree and affirm the decision below.

I. FACTS AND PROCEDURAL HISTORY

In 1978, Rys, a mailhandler employed by the United States Postal Service (USPS) at its Springfield Massachusetts Bulk Mail Center, injured his shoulder and back. This injury constrained his ability to lift heavy objects, and he was placed on limited duty status. Rys requested placement in an upper-level position but was denied the promotion. He filed two Equal Employment Opportunity (EEO) complaints alleging that he had been denied training for other positions because of his physical handicap.

The USPS attempted to resolve this dispute through internal investigation and negotiation, but on October 17, 1984, Rys filed a third EEO complaint restating his earlier allegations of discrimination based upon a physical handicap and adding a claim that he had been discriminated against in reprisal for his previous EEO actions. On November 18, 1985 the USPS concluded its internal examination of Rys' complaints and ruled that he had not been discriminated against by the Service.

Rys appealed this decision to the Equal Employment Opportunity Commission (EEOC). On September 29, 1987, the EEOC ruled that the USPS had not discriminated against Rys. The Commission held that: " [appellant] cannot show that he is a 'handicapped person' under 29 C.F.R. Sec. 1613.702(a) ... appellant was not qualified for the [upper level] position since he did not meet the job requirement of having two years of general office experience ... a high school diploma or two years business experience ... he failed to show that the selecting officials of the [upper level] position knew of his EEO activity ... [and] the record shows that the agency articulated legitimate nondiscriminatory reasons for not selecting appellant to the position."

Appended to the EEOC decision was a Notice of Right to File a Civil Action that stated:

You are hereby notified that the attached decision in your case is final. You have the right to file a civil action in the appropriate United States District Court WITHIN THIRTY (30) DAYS from the date that you receive this decision.... You are further notified that if you file a civil action, YOU MUST NAME THE APPROPRIATE OFFICIAL AGENCY OR DEPARTMENT HEAD AS THE DEFENDANT. Rule 25(d)(2) of the Federal Rules of Civil Procedure provides that you may describe the defendant by official title rather than by name. Failure to provide the NAME OR OFFICIAL TITLE of the agency head or, where appropriate, the department head, may result in the loss of any judicial redress to which you may be entitled. (Please note: For this purpose, Department means the overall national organization, such as the now defunct Department of Health, Education and Welfare, not the local administrative department where you might work.) You must be sure that the proper defendant is named when you file your civil action. (Emphasis and capitalization in original).

Rys filed the instant civil case on November 2, 1987, the final day of the 30-day statute of limitations period provided under 42 U.S.C. Sec. 2000e-16(c). In the complaint, Rys named the following defendants: the USPS; John Steele, Division Manager/Postmaster, Springfield; Bernard Opitz, Jr., Acting Director, Control and Logistics; and Mark DeShais, Manager, Vehicle Operations. He did not name the Postmaster General of the United States who is the only statutorily appropriate defendant under 42 U.S.C. Sec. 2000e-16(c). Rys served a copy of the complaint upon the United States Attorney's Office in Springfield, Massachusetts, the Attorney General of the United States and Messrs. Steele, Opitz and DeShais 120 days after Rys filed his initial complaint. ¹ See Fed.R.Civ.P. 4 (allowing 120 days to provide service following the instigation of a civil action). Plaintiff never provided any notice to the Postmaster General.

The district court, upon motion of the USPS, dismissed Rys' claim because he failed to name the Postmaster General in his complaint. The court considered the possibility of equitably tolling the statute of limitations to allow Rys to include the Postmaster General in an amended complaint, but concluded that equity did not favor tolling.

This latter determination is the basis for this appeal: whether the district court erred in refusing to toll the 30-day statute of limitations period due to equitable considerations. ²

II. DISCUSSION

42 U.S.C. Sec. 2000e-16(c) provides that a federal employee who wishes to pursue a discrimination claim in district court must file her complaint within 30 days of receiving her right-to-sue letter from the EEOC. The section further provides that the "head of the department, agency, or unit, as appropriate, shall be the defendant." Both parties agree that in the case at bar the only appropriate defendant is the Postmaster General. See Desroches v. United States Postal Serv., 631 F.Supp. 1375, 1378 (D.N.H.1986) (noting same). They also agree that Rys neither named nor served the Postmaster general within the relevant 30-day period. The contested issue is whether plaintiff may now amend his complaint under Fed.R.Civ.P. 15(c) to include the appropriate defendant.

Rule 15(c) ³ controls whether an amended complaint, which adds a necessary defendant but is filed after the limitations period has run, may "relate back" to the filing of the original complaint and thereby escape a timeliness objection. In Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986) the Supreme Court examined Rule 15(c) and held that whether an amended complaint will relate back to the original filing is

dependent upon four factors, all of which must be satisfied: (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.

As it is undisputed that Rys did not give notice to the Postmaster General within 30 days following his receipt of the EEOC's right-to-sue letter, plaintiff's claim is time barred unless equity steps in to toll the limitations period.

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), the Supreme Court determined that the 90-day period for filing a Title VII claim against a private employer with the EEOC, see 42 U.S.C. Sec. 2000e-5(e), was not jurisdictional but was, like a statute of limitations, subject to equitable modification. This circuit, and others, have extended the Zipes rationale to allow equitable modification of 42 U.S.C. Sec. 2000e-5(f)(1)'s 90-day limit for filing private discrimination claims in federal district court following the conclusion of administrative proceedings. See Rice v. New England College, 676 F.2d 9, 10 (1st Cir.1982); Mondy v. Secretary of the Army, 845 F.2d 1051, 1054-55 (D.C.Cir.1988) (collecting cases).

There is a division in the circuits as to whether the filing period contained in 42 U.S.C. Sec. 2000e-16(c), which requires that a federal employee file her claim in district court not later than 30 days following final administrative action, is jurisdictional or is subject to change through the equitable doctrines of estoppel, waiver and tolling. See Stuckett v. United States Postal Serv., 469 U.S. 898, 105 S.Ct. 274, 83 L.Ed.2d 210 (1984) (White and Rehnquist, JJ., dissenting from the denial of certiorari on case presenting this question and collecting conflicting circuit authorities). A majority of circuit courts, focusing upon the remedial nature of Title VII, have ruled that the limitations periods contained in section 2000e-16(c) may be equitably modified. See Ross v. United States Postal Serv., 814 F.2d 616, 617 (11th Cir.1987) (collecting 11th Circuit authorities); Warren v. Dep't of the Army, 867 F.2d 1156, 1158-59 (8th Cir.1989); Williams v. Army and Air Force Exchange Serv., 830 F.2d 27, 30-31 (3rd Cir.1987); Mondy, 845 F.2d at 1054-57; Martinez v. Orr, 738 F.2d 1107, 1109-10 (10th Cir.1984). Other courts have been persuaded that because limited waivers of sovereign immunity must be narrowly construed, see Lehman v. Nakshian, 453 U.S. 156, 160-61, 101 S.Ct. 2698, 2701-02, 69 L.Ed.2d 548 (1981), when a Title VII action is lodged against the federal government, the filing periods are jurisdictional prerequisites to maintaining suit. See Bell v. Veterans Admin. Hosp., 826 F.2d 357, 360-61 (5th Cir.1987) (citing Eastland v. Tennessee Valley Auth., 553 F.2d 364, 368 (5th Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (19...