Petition for Writ of Certiorari — Schoo v. United States Postal Service

\ Supreme UOurt, wes

a a) FILED

88-125 no

JOSEPH E. SPANIOL, Je

SUPREME COURT OF THE UNITED ania

No. ia ost

October Term, 1988

TEDDYANNE SCHOO,

Petitioner,

vs.

U. S. POSTAL SERVICE; JOHN C. HOLMES;

CHARLES T. HALL; JASPER GRADY;

WILLIAM G. FELAND; WILLIAM DODSON;

WARREN BLOOMBERG,

Respondents.

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK ERIC HERMAN

14 W. Madison St.

Baltimore, MD 21201

(301)837-2144

Counsel for Petitioner

No.

SUPREME COURT OF THE UNITED STATES

October Term, 1988

ee

TEDDYANNE SCHOO,

Petitioner,

VSe

U. S. POSTAL SERVICE; JOHN C. HOLMES;

CHARLES T. HALL; JASPER GRADY;

WILLIAM G. FELAND; WILLIAM DODSON;

WARREN BLOOMBERG,

Respondents.

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

A) QUESTION PRESENTED FOR REVIEW

Is notice of the institution of civil liti-

gation on the supervisory employee of the Petitioner

sufficient notice in order to allow Federal Rule of

Civil Procedure 15(c) to relate back an Amended Com-

plaint adding the proper party, Postmaster General,

and to allow such action to be considered a timely

filing within the requiements of 42 U.S.C. Section

2000e-16(c). Given actual and timely notice, albeit

to Petitioner’s supervisor, and not the Postmaster

General, and given the Postmaster General did not

show one oita of prejudice, whether the opinion

below is in direct conflict with the liberal notice

requirements imported into the remedial

discriminatory law statutes, as enunciated in

Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379,

1986. Also see: Cooper v. United States Postal

Service, 4/1 U.S. 1022, (Dissent of Judge White).

B) PARTIES TO THE PROCEEDING

At the commencement of this action, Teddyanne

Schoo was Plaintiff and U. S. Postal Service, John

C. Holmes, Charles T. Hall, Jasper Grady, William G.

Feland, William Dodson and Warren Bloomberg were

Defendants. At the Appellate level, the Appellant

was the Petitioner and the Appellee was the Respond-

ent.

6 Watts attain %

1)

2)

C) TABLES

TABLE OF CONTENTS

QUESTION PRESENT FOR REVIEW....cececeee

PARTIES TO THE PROCEEDINGS....csccccees

TABLES

TABLE OF COmtentSecsccccccccccccccccece

Table of Authorities:

ee ee ee ae a eo

Statutes, Rules and

Regulations..eccseee

REFERENCE TO THE OFFICIAL REPORTS BELOW

Cec hac ch ace becdeeeeeceences

STATUTES AND REGULATIONS IN THE PRESENT

ae aa ee wen ee ees

CONCISE STATEMENT OF THE CASE....ccccce

ARGUMENTS OUTLINING THE REASONS RELIED

UPON FOR THE ALLOWANCE FOR THE WRIT....

De ee oegaeenesnebeccdeececéecerve

CERTIFICATE OF DUT RUieasss steeds eseaee

(jj (eee ctes kd a bbe oes 6 dees eee 6 8ee

Schoo v. U. S. Postal Service, United

States Court of Appeals for the Fourth

Circuit, No. 88-156

TABLE OF AUTHORITIES

Cases

Balanciere v. United States Postal Service,

648 F. Supp. 38, 40 (D.Colo. 1984).........

- 3-

21

22

18

Bruce v. Smith, 581 F.Supp. 902, 906

(W.D. Va. 1984) ccccccccccccccccccccccoces 15, 18

Cooper v. United States Postal Service, 471 U.S.

1022 (Dissent of Judge White)....... 2, 13, 17

Dutka v. Southern Railway Co., 92 F.R.D. 375,

377 (N.D. Ga. 1981) .coccccccccesccceccce 18

Eatkins v. Read, 710 F.2d 184, 187

(4th Cir. 1983) ccccccccccccccccccccccccs 15

Faulkner v. Bolger, 655 F.Supp, 717

(E.D. Ark. 1987) ccccccccccccccccccccccces 13

Gonzales v. Department of the Air Force, 110

FRD 350 (N.D. Tex. TFSSPccccececseseccses 16, 17

Hendrix v. Memorial Hospital of Galveston County,

776 F.2d 1255 (5th Cir. 19B5) ecccccccccccccce 15, 19

Hernandez Jimenez v. Calero Toledo, 604 F.2d

99, 102-03 (lst Cif. EOFS heceosecsesecece 18, i9

Hornsby v. United States Postal Service, 787

F.2d 87, 91 (3rd Cif « EPOO) 66sbbecedenece 14

Kirk v. Cronvich, 629 F.2d 404, 408

(5th Git. 1980) cccccccccccccccccccsccscccs 15, 18

McGuiness v. United States Postal Service, 744

F.2d 1318 (7th Cir. > eee 13

Ramirez v. Burr, 607 F.Supp. 170, 173 (D.C.

Tex. 1984) ccccccccccccccccccccccccccccce 18

Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct.

2379 (1986) .ccccccccccccccccccscccccccce as 12,

15, 16, 19

Williams v. Hidalgo, 663 F.2d 183, 187

[PuGe Cire 1980) cccccccccccccccccccccecs 13, 14

Wood v. Worachek, 618 F.2d 1225, 1230

(7th Cir. it. ) PP PrrrrrrrrrrrrreyrTrrTrriy. 19

«i>

ee ee ee Tk. ee

Statutes, Rules and Regulations

42 U.S.C. Section 2000(e)-l6c

Civil Rule of Federal Procedure 15(c)

D) REFERENCE TO THE OFFICIAL REPORTS BELOW

The Honorable Judge Joseph C. Howard of the

United States District Court dismissed this action

with prejudice for failure to name a proper party

Defendant. On December 21, 1987, a Motion to Alter

Amend Judgment Request for Hearing was filed and the

Motion was denied January 12, 1988. The case was

not reported in an official text. The Appellant

decision, decided December 27, 1988 was unpublished.

E) JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C. Section 1251(4).

F) STATUTES AND REGULATIONS INVOLVED IN THE PRESENT

ACTION

Rule 15. Amended and Supplemental Pleadings

(a) Amendments. A party may amend the partys

pleading once as a matter of course at any time

before a responsive pleading is served or, if

the pleading is one to which no responsive

pleading is permitted and the action has not

been placed upon the trial calendar, the party

may so amend it at any time within 20 days

after it is served. Otherwise a party may

amend the party’s pleading only by leave of

court or by written consent of the adverse

party; and leave shall be freely given when

justice so requires. A party shall plead in

response to an amended pleading within the time

remaining for response to the original pleading

or within 10 deys after service of the amended

pleading, whichever period may be the longer,

unless the court otherwise orders.

{c) Relation Back of Amendments. Whenever the

claim or defense asserted in the amended plead-

ing 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 plead-

ing. 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.

- 6-

The delivery or mailing of process to the

United States Attorney, or the United States

Attorney’s designee, of the Attorney General of

the United States, or an agency or officer who

would have been a proper defendant if named,

satisfies the requirement of clauses (1) and

(2) hereof with respect to the United States or

any agency or officer thereof to be brought

into the action as a defendant.

2. Section 2000e-16. Nondiscrimination in Federal

Government employment

(a) Discrimination prohibited. All personnel

actions affecting employees or applicants for

employment (except with regard to aliens

employed outside the limits of the United

States) in military departments as defined in

section 102 of title 5, United States Code, [5

USCS Section 102] in executive agencies (other

than the General Accounting Office) as defined

in section 105 of title 5, [5 USCS Section 105]

United States Code (including employees and

applicatants for employment who are paid from

nonappropriated funds), in the United States

Postal Service and the Postal Rate Commission,

in those units of the Government of the Dis-

trict of Columbia having positions in the

competitive service, and in those units of the

legislative and judicial branches of the Fed-

eral Government having positions in the compe-

titive service, and in the Library of Congress

shall be made free from any discrimination

based on race, color, religion, sex, or

national origin.

(b) Role of Civil Service Commission; com-

pliance of departments and agencies with rules

and regulations. Except as otherwise provided

a J «=

in this subsection, the Civil Service Com-

mission shall have authority to enforce the

provisions of subsection (a) through appro-

priate remedies, including reinstatement or

hiring of employees with or without back pay,

as will effectuate the policies of this sec~

tion, and shall issue such rules, regulations,

orders and instructions as it deems necessary

and appropriate to carry out its responsibili-

ties under this section. The Civil Service

Commission shall--

(1) be responsible for the annual review

and approval of a national and regional equal

employment opportunity plan which each depart-

ment and agency and each appropriate unit

referred to in subsection (a) of this section

shall submit in order to maintain an affirma-

tive program of equal employment opportunity

for all such employees and applicants for

employment;

(2) be responsible for the review and

evaluation of the operation of all agency equal

employment opportunity programs, periodically

obtaining and publishing (on at least a semi-

annual basis) progress reports from each such

department, agency, or unit; and

(3) consult with and solicit the recommen-

dations of interested individuals, groups, and

organizations relating to equal employment

opportunity.

The head of each such department, agency, or

unit shall comply with such rules, regulations,

orders and instructions which shall include a

provision that an employee or applicant for

employment shall be notified of any final

action taken or any complaint of discrimination

filed by him thereunder. The plan submitted to

each department, agency, and unit’ shall

include, but not be limited to--

=o §«

(1) provision for the establishment of

training and eduction programs designed to

provide a maximum opportunity for employees to

advance so as to perform at their highest

potential; and

(2) a description of the qualifications in

terms of training and experience relating to

equal employment opportunity for the principal

and operating officials of each such depart-

ment, agency, or unit responsible for carrying

out the equal employment opportunity program

and of the allocation of personnel and

resources proposed by such deparment, agency,

or unit to carry out its equal employment

opportunity program.

With respect to employment in the Library of

Congress, authorities granted in this sub-

section to the Civil Service Commission shall

be exercised by the Librarian of Congress.

(c) Civil action by party aggrieved. Within

thirty days of receipt of notice of final

action taken by a department, agency, or unit

referred to in subsection 717(a) [subsec. (a)

of this section], or by the Civil Service

Commission upon an appeal from a decision or

order of such department, agency, or unit on a

complaint of discrimination based on race,

color, religion, sex oor national origin,

brought pursuant to subsection (a) of this

section, Executive Order 11478 or any succeed-

ing Executive orders, or after one hundred and

eighty days from the filing of the initial

charge with the department, agency, or unit of

with the Civil Service Commission on appeal

from a decision or order of such department,

~ 9 «

agency, or unit until such time as final action

may be taken by department, agency, or unit, an

employee or applicant for employment, if

aggrieved by the final disposition of his com-

plaint, or by the failure to take final action

on his complaint, may file a civil action as

provided in section 706 [42 USCS Section

2000e-5], i: which civil action the head of the

department, agency, or unit, as appropriate,

shall be the defendant.

(d) Application of certain provision. The pro-

visions of sections 706(f) through (k) [42 USCS

Sections 2000e-5(f)-(k)}, as applicable, shall

govern civil actions brought hereunder.

(e) Continuing responsibility of agencies and

officials to assure nondiscrimination. Nothing

contained in this Act [title] shall relieve any

Government agency or official of its or his

primary responsibility to assure nondiscrimina-

tion in employment as_ required by the

Constitution and statutes or of its or his

responsibilities under Executive Order 11478

relating to equal employment opportunity in the

Federal Government.

(July 2, 1964, P. L. 88-352, Title VII, Section

717, as added Mar. 24, 1972, FP. Le. 92-261,

Section 11, 86 Stat. 111.)

G) CONCISE STATEMENT OF THE CASE

On May 13, 1987, Petitioner brought suit

against the United States Postal Service and various

supervisory employees pursuant to Article 47,

Section 2000e-l6(c) of the United States Code. The

- 10 -

a

United States Postal Service filed a motion to

dismiss the claim for failure to name the proper

party. Petitioner sought leave to amend _ the

complaint and a ruling that the amended complaint

should relate back under Rule 15(c). The Trial

Court below denied Petitioner”s motion for leave to

amend and dismissed the complaint with prejudice.

On February 5, 1988, an Appeal was timely noted to

the 4th Circuit.

Petitioner, TEDDYANNE SCHOO, timely filed

administrative charges of employment discrimination

against her employer, the United States Postal

Service, with the Equal Employment Opportunity

Commission in January, 1982. After pursuing her

grievance through the appropriate administrative

hearings, the Equal Employment Opportunity

Commission issued a final decision of "no discrim-

ination." However, the initial opinion sent to

Petitioner was incomplete. The corrected decision

was forwarded to Appellant on April 21, 1987.

- lJ] -

On May 13, 1987, Petitioner filed suit against

the United States Postal Service and the employees

who were involved in the alleged acts of discrim-

ination against her. Petitioner’s supervisor, John

Holmes, was served with notice of the suit on May

23, 1967

The Trial Court below dismissed the complaint

with prejudice. The Appellant Court affirmed,

erroneously holding that insufficient notice was

given by service of notice on Petitioner’s super-

visor to satisfy Schiavone, despite -no showing of

actual prejudice.

H) ARGUMENTS OUTLING THE REASONS RELIED UPON FOR

THE ALLOWANCE FOR THE WRIT

Petitioner strongly urges that a Writ of

Certiorari should be granted in this case because

Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379

(1986) is being misapplied, an extremely shorter

time requirement is defeating meritorious liti-

gation, Federal Rule 15(c) is being misapplied, and

- 12 -

nt Oks Pacer i

the se ACRE Pinta Rha net ae

aacntdiiniatseatinsnttinsssainsll

Maer baer tena“

because the dissent in Cooper opened the door for a

case, such as this, where actual notice was given to

alleviate the harsh results of Cooper and McGuiness

ve. United States Postai Service, 744 F.2d 1318 (7th

Cir. 1984).

The dissent in Cooper noted that "there is no

unanimity among the Circuits concerning the proper

interpretation of Rule 15(c)“s notice provision."

471 U.S. at 1024.

Title VII, Section 717 of the Civil Rights Act

provides that "within thirty days of receipt of

notice of final action" an aggrieved party may file

a civil action. Final notice includes notification

of the right to sue and notification of the time

limit within which the action must be filed.

Williams v. Hidalgo, 663 F.2d 183, 187 (D.C. Cir.

1980). The grounds for the agency action are also

an important part of the notification process. See,

Faulkner v. Bolger, 655 F.Supp. 717 (E.D. Ark.

1987). Here, the final notification of the decision

of the Equal Employment Opportunity Commission was

- 13-

not received by Petitioner until after the Com-

mission issued their corrected decision on April 21,

1987. The statutory period does not begin to run

until Petitioner has received proper notification of

the agency action. Williams v. Hidalgo, 663 F.2d

183, 188 (D.C. Cir. 1980), Hornsby v. United States

Postal Service, 787 F2d 87, 91 (3rd Cir. 1986). The

thirty days began to run from April 24, 1987

(including the three days provided for mail delivery

under Rule 6[e]).

John Holmes, Petitioner”’s former supervisor and

an employee of the United States Postal Service,

received notice of the institution of the suit by

service effected on May 23, 1987, which was within

the thirty day period.

After naming the wrong parties as defendants

in the matter, Petitioner sought leave to amend the

pleadings and a ruling that the amended pleadings

related back under Rule 15(a) and 15(c). Four

factors must be satisfied in order to permit an

amendment to relate back to the original pleadings.

The basic claim must have arisen out of the conduct

o 14 =

Seca

set forth in the original pieading. The added party

must have received such notice that it will not be

prejudiced in maintaining its defense on the merits.

The party must have or should have known that but

for a mistake, the action would have been brought

against him. Finally, the last two requirements

must have been fulfilled within the _ prescibed

limitations period. Schiavone v. Fortune, 477 U.S.

21, 106 S.Ct. 2379, 2384 (1986). Informal notice of

the commencement of the action or constructive

notice is sufficient to satisfy the notice require-

ments of Riled 15(c). Kirk v. Cronvich, 629 F.2d

404, 408 (5th Cir. 1980); Bruce v. Smith, 581 F.

Supp. 902, 906 (W.D. Va. 1984). Notice need not be

effected by service of process. Eatkins v. Read,

710 F.2d 184, 187 (4th Cir. 1983). It may be

inferred where the named defendant has identity of

interests with the added party or is an agent for

the added party. See, Kirk v. Cronvich, supra;

Hendrix v. Memorial Hosptial of Galveston County,

776 F.2d 1255 (5th Cir. 1985).

- 15 -

Notice of the suit to Petitioner’s supervisor,

Postal employee John Holmes, should be considered as

notice to the Postmaster General, relying on the

fact that the case of Gonzales v. Department of the

Air Force, 110 FRD 350 (N.D. Tex. 1986) was reversed

upon the Court”s reconsideration of it in light of

Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379

(1986). Gonzales v. Department of the Air Force,

638 F.2d 1323, 1325 (N.D. Tex. 1986). The Supreme

Court, in Schiavone v. Fortune, made it clear that

in order for a complaint to relate back under Rule

15(c), the added party must have received notice of

the institution of the proceedings within the

prescribed time period. Schiavone v. Fortune, 477

U.S. 21, 106 S. Ct. 2379, 2384 (1986). The District

Court, in Gonzales v. Department of Air Force, 638

F. Supp. 1323 (N.D. Tex. 1986) granted Defendants”

motion to dismiss because neither the Department of

the Air Force nor the United States Attorney had

been notified within the thirty day period. The

Court did not reverse its earlier reasoning that

» §6 =

notice to a lesser agency official would be con-

sidered notice to the head of the agency. Gonzales

ve. Department of the Air Force, 638 F. Supp. 1323,

1325 (N.D. Tex. 1986). The Appellant Court relied

on the case of Cooper v. United States, 740 F.2d

114, 715 (9th Cir. 1984), cert. denied, 105 S.Ct.

2034 (1985) in rejecting Petitioner’s argument.

That case is singularly not applicable here. In

Cooper, no one was timely notified of the impending

civil litigation within the thirty day period.

In the case at bar, notice of the civil suit

was served on a supervisory employee of the United

States Postal Service within the thirty day time

period. The employee participated in all of the

grievance proceedings on behalf of the United States

Postal Service and acted with the authority of the

Postal Service and, hence, the head of the agency.

Clearly, an employee who had the authority to fire

and defend against an employment discrimination

grievance proceeding has the authority to receive

- 17 -

notice of the civil litigation when the aggrieved

employee was unsatisfied with the results of those

proceedings. See, Kirk v. Cronvich, 629 F2D 404,

407 (5th Cir. 1980); Balanciere v. United States

Postal Service, 648 F. Supp. 38, 40 (D.Colo. 1984).

The purpose of Rule 15(c) is to prevent the

Statute of limitations fror. barring an action where

the wrong party was sued but where the correct party

had sufficient notice of the commencement of the

action. Dutka v. Southern Railway Co., 92 F.R.D.

375, 377 (N.D. Ga. 1981). Sufficiency of the notice

must be evaluated in light of the policy objectives

of the statute of limitations, which include

avoiding undue surprise and permitting investigation

and collection of evidence while it is still fresh.

Ramirez v. Burr, 607 F. Supp. 170, 173 (D.C. Tex.

1984). Identity of interests between the original

and added parties is an appropriate guide in meas-

uring the possible prejudice that could be incurred

by the added party. See, Bruce v. Smith, 581 F.

Supp. 902, 906 (W.D. Va. 1984); Hernandez Jimenez v.

- 18 «

Calero Toledo, 604 F2d 99, 102-03 (lst Cir. 1979);

Wood v. Worachek, 618 F2d 1225, 1230 (7th Cir.

1980); Hendrix v. Memorial Hospital of Galveston

County, 776 F2d 1225, 1228 (Sth Cir. 1985). The

"linchpin" of the relation back rule is notice,

either formal or informal, within the prescribed

time period. Schiavone v. Fortune, 477 U.S. 21, 106

S.Ct. 2379, 2385 (1986).

Here, the Postmaster General had notice of the

institution of the civil suit through notice of the

suit to its employee, John Holmes. The Postmaster

General did not personally participate in the

decision to discharge Petitioner. His only know-

ledge of the events necessarily must come from his

employee--the man who made the decision to discharge

Petitioner, who fully participated in the investiga-

tion of Petitioner”’s complaint of discrimination at

the administrative level, and the man who was timely

notified of the institution of the civil action.

- 19 -

CONCLUSION

Either FRCP 15(c) is going to be liberally con-

strued, or it is not. It is unfair for litigants in

some circuits to have their day in Court, while

others suffer seeing their cases dismissed. Dis-

missal is not required in this case. Timely notice

was sent to a key supervisory employee with an

identity of interest. No prejudice has been shown.

Relating back should be favored where the statute of

limitations is as short as 30 days. Relating back

should be formed where the litigant seeks to remedy

a discriminatory art, where rectification benefits

the public as whole.

Respectfuly submitted,

Ya [Mhraete

MARK ERIC HERMAN

14 W. Madison Street

Baltimore, MD 21201

837-2144

Counsel for Petitioner

- 20 -

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this a7 day of

CHenuatyr , 1989, three copies of the above

Petition for Certiorari to the United States Court

of Appeals for the Fourth Circuit and Appendix were

mailed first class, postage pre-paid, to Brecken-

ridge C. Wilcox, United States Attorney, Office of

the United States Attorney, 101 W. Lombard Street,

8th Floor, United States Court House, Baltimore,

Maryland 21201; Roann Nichols, Assistant United

States Attorney, United States Court House, 101 W.

Lombard Street, Baltimore, Maryland 21201-2692;

Jesse L. Butler, Assistant General Counsel; David G.

Karro, Esquire, Office of Labor Law, Room 6414, 475

L°Enfant Plaza, Washington, DC 20264.

Vig. Wd

\ Mawr. Rue

MARK ERIC HERMAN

-~ 21 -

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-1556

TEDDYANNE SCHOO

Plaintiff - Appellant

Ve

U.S. POSTAL SERVICE; JOHN C.

HOLMES; CHARLES T. HALL; JASPER

GRADY; WILLIAM G. FELAND; WILLIAM

DODSON; WARREN BLOOMBERG

Defendants - Appellees

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Joseph C.

Howard, United States District Judge. (CA-87-

1216JH).

Argued : November 1, 1988

Decided: December 27, 1988

Before WINTER, Chief Judge, and MURNAGHAN and

SPROUSE, Circuit Judges.

Barbara Lynn Matthews for Appellant. David George

Karro (Jesse L. Butler, Assistant General Counsel,

Office of Labor Law, U.S. POSTAL SERVICE; Breckin-

ridge L. Willcox, United States Attorney, Roann

Nichols, Assistant United States Attorney, on brief)

for Appellees.

- 92 «

—o—_—— er

PER CURIAM:

Teddyanne Schoo appeals the judgment of the

district court dismissing her title VII action

against the United States Postal Service, John C.

Holmes, Charles T. Hall, Jasper Grady, William G.

Feland, William Dodson and Warren Bloomberg. The

district court effectively denied Schoo’s Fed. R.

Civ. P. 15(c) motion to amend her complaint to name

the Postmaster General as a defendant by dismissing

it because the Postmaster General was not so named

as required by statute. We affirm.

Schoc filed a complaint before the Equal

Employment Opportunity Commission in 1982 alleging

discrimination in her termination from her job in

the Baltimore Post Office. In 1985, she appealed

the unfavorable decision within the EEOC, which

determined that Schoo had no cognizable claim and so

advised her in a letter of April 9, 1987, which she

received on April 13.1 The EEOC also advised her

l

The last paragraph of the Analysis and Find-

ings section of the EEOC letter to Schoo ended in

mid-sentence. Through her attorney, she advised

them of that defect on April 14, and she received a

corrected letter, dated April 21, om April 24.

= 93 =

that she had thirty days from the date of receipt to

file an action in district court.

In Schoo’s original district court complaint

filed on May 13, 1987, she named the United States

Postal Service and six individuals as defendants.

One of those individuals, John C. Holmes, was her

immediate supervisor in Baltimore. Schoo”’s com-

plaint was mailed to several defendants on May 22,

1987. Holmes received his copy on May 23. To com-

plete her action against the Postal Service, Schoo

mailed the summons and complaint to the Baltimore

Postmaster on May 22. He received them on May 27.

Schoo filed an amended complaint on October 26, 1987

2

It is evident from Schoo”’s complaint that she

intended service on the Baltimore Postmaster as

service on the Postal Service. However, since the

Baltimore Postmaster did not receive the summons and

complaint until more than thirty days after either

EEOC letter, Schoo relies on her service of Holmes

as furnishing the requisite notice to the Postmaster

General.

—) a

naming the Postmaster General as a defendant pur-

suant to Rule 15(c). This, of course, was beyond

the thirty-day limitation period even if that period

started upon receipt of the second EEOC notifica-

tion. In Schoo’s rule 15(c) motion, however, she

asked that the ameded complaint relate back to May

13, 1987, the date she filed her original compJaint.

The district court, ruling that the Postmaster Gen-

eral had not received the required rule 15(c) notice

of the original complaint, disallowed the amended

complaint and dismissed the action. On appeal,

Schoo contends that, under Rule 15(c), service on

Holmes, her supervisor at the Baltimore post office,

was sufficient notice to the Postmaster General that

the action was pending against him.

The language of title VII requires that, in

actions brought against government agencies, "the

head of the department, agency, or unit, as appro-

priate, shall be the defendant." 42 U.S.C.A.

Section 2000e-16(c) (West 1981). Actions brought

against the Postal Service must name the Postmaster

- 25 -

General as a defendant. McGuiness v. United States

Postal Service, 744 F.2d 1318, 1322-23 (7th Cir.

1984); Cooper v. United States Postal Service, 740

F.2d 714, 176 (9th Cir. 1984°%, cert. denied, 471

U.S. 1022 (1985).

In a notice attached to the decision it

forwarded to Schoo, the EEOC adviser her that:

- « « [T]he 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 depatment 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 organ-

ization, 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.

—. =

Rule 15(c) provides in part:

An amendment changing the party against whom a

claim is asserted relates back if ... ,

within the period provided by law for commenc-

ing 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 main-

taining 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.

"The linchpin [of rule 15(c)] is notice..."

Schiavone v. Fortune, 477 U.S. 21, 31, (1986).

Even if we were to use April 24, 1987 as the date

the thirty-day period began to run, and thereby

eliminate any timeliness problem regarding service

on the substitute party, see Schiavone, id., Holmes

was not an adequate substitute for the Postmaster

General. We cannot construe the notice requirement

of Rule 15(C) so liberally as to hold that notice of

an action against the head of a huge organization

such as the Postal Service can be effected by naming

and serving a minor supervisory employee far removed

from the cental commnand and from any organizational

» 37 ~

structure through which the department head ordin-

arily responds to litigation.

The Postal Service is organized in such a way

that

[t]he General Counsel of the Postal Service

shall act as agent for the receipt of legal

process against he Postal Service, and as agent

for the receipt of legal process against...

all .. . officers and employees of the Postal

Service ..« -«

39 C.F.R. Section 2.2 (1988). Although we would not

assume that all postal employees are aware of that

regulation, its promulgation certainly represents a

reasonable exercise of the postmaster’s discretion.

Short of correct service through designated

channels, the postmaster would be placed on notice

so as to satisfy the requirement of rule 15(c) by

other appropriate service. Rule 15(c) provides:

The delivery or mailing of process to the

United States Attorney, or the United States

Attorney’s designee, or the Attorney General of

the United States, or an agency or officer who

would have been a proper defendant if named,

satisfies the requirement of clauses (1) and

= @ «

(2) hereof with respect to the Unites States or

any agency or officer thereof to be brought

into the action as a defendant.

See also rule 4(d)(5), which provides that service

on any agency of the United States may be obtained

by delivering a copy of the summons and complaint to

the United States Attorney for the district in which

the action is brought, or to his assistant or

designee, and mailing the same to the Attorney

General and the agency. The above quoted language

of Rule 15(c) designating specific officials, upon

whom service would comprise adequate rule 15(c)

notice, is obviously not exclusive and implies that

service on some other officials might achieve the

same result. Without exploring all of those pos-

sibilities, suffice it to say that, in our view, a

supervisory employee of a local post office is not

such an official.

In view of the above, the judgment of the dis-

trict court is affirmed.

AFFIRMED

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