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

Supreme Court brief1989

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F. SPANIOL, JR

CLERK

TABLE OF CONTENTS

Page

QUESTION PRESERTED.»<sss4 «<= ease ase ess i

TABLE OF AUTHORITIES. .. 02% 3a eeu ree pe

OPINION BELOW... oss csnesessnu see ees eens 1

JURISDICTION..« <5 00 6s uo on ee ee ee ee Pe:

CONSTITUTIONAL AND STATUTORY PROVi=

SIONS. IKVOLVED.. sous ee eee rie as 2

STATEMEKT OF THE CASEa5 cy esse ep eee 4

REASONS FOR GRANTING THE WRIT.......-... 5

CONCLUSION... 20« 0s © « 6 ss le oe © Oe ence ae 10

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District Court For The District Of New

Jersey dismissing the Petitioners

Complaint entered on October 24, 1988.

OPINION BELOW

The opinion of the District Court is

reproduced in the Appendix to this Peti-

tion beginning at App. P.- A-1.

A Judgment-Order was entered in the

Court of Appeals on March 21, 1989, and on

April 27, 1989 the Court ordered a stay

until June 19, 1989.

JURISDICTION

A Judgment-Order was entered on

March 21, 1989 by the Court of Appeals. A

timely motion for a stay was made and the

stay was issued on March 21, F989. The

jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. 42 U.S.C. §2000e-16(c) reads in

relevant part "... may file a civil action

as provided in section 2000e-5 of this

title, in which civil action the head of

the department, agency, or unit, as appro-

piate, shall be the defendant."

2. 42 U.S.C. §2000e-16(e) reads in

relevant part "Nothing contained in this

Act shall relieve any Government agency

or official of its... primary responsi-

bility to assure nondiscrimination in

employment...."

3. Federal Rule of Civil Procedure

15(c) reads in relevant part "...An amend-

ment changing the party against whom a

claim is asserted relates back if...

within the périod provided by law for

commencing the action... the a ree © oS

has received such notice of the institution

of the action that he will not be prejudiced

in maintaining his defense on the merits...

(2) knew or should have known that, but

for e pistake...the action would have been

brought against him."

STATEMENT OF THE CASE

The Petiticner, Joan Ward, was fired

from her job as a letter carrier for the

Plainfield Branch of the United States

Postal Service. Alledging discrimination,

a complaint was filed with the EEOC. A

hearing examiner concluded that she was

discriminated against and the agency

appealed. On appeal, petitioner lost.

A suit was filed in District Court

against the United States Postal Service.

The Government made a motion to dismiss

for lack of jurisdiction contending that

the proper defendant was the United States

Post Master General.

Petitioner maintained that she did

name the proper defendant, or, in the

alternative, that she should be allowed to

amend her compla@tnt.

The District Court ruled that the

wrong defendant was named and that any

amendment made would not relate back. On

appeal, the Circuit Court upheld the

decision of the District Court.

REASONS FOR GRANTING THE WRIT

This entire matter hinges on who

the proper party defendant is in Title

VII actions brought as a result of feder-

al sector employment. In the instant case

we are dealing with the United States

Postal Service (USPS) however, the de-

termination of this case will impact upon

millions of federal employees.

There can be no dispute that Title

VII, which creates statutory rights

against invidious discrimination in

employment and establishes a comprehensive

scheme for the vindication of these rights,

is an issue of national importance. It is

an embarrassment that a double standard

has been created. Private sector cases

are made easy while federal sector cases

are not even heard on the merits because

of a trap woven into the very fabric of

the system.

In recent years the federal courts

have taken the view that the "agency head"

is the proper party defendant in Title Vil

cases, to the detriment of many litigants.

Williams v. Army and Air Force Exchange,

830 F. 2d 27 (3d . Cir. 1987); Bates v.

Tennessee Valley Authority, 851 F. 2d 1366

( llth Cir. 1988); Ellis v. United States

Postal Service, 784 F. 2d 835 (7th Cir.

While the courts recognize that their

interpretation of the law creates "harsh

results", Lubniewski v. Department of the

Navy, 682 Fed. Supp. 462, 464 (NLD. Gad.

1988), they have plunged forward denying

honest litigants the right to have their

cases heard on the merits.

The decisions have become so convoluted

that attorneys, and pro ses, alike are

confused. Some decisions hold against

the naming of individuals, McGuinness v.

United States Postal Service, /44 F. 2d

1318 (7th Cir. 1984); Canino v. United

States Equal Employment Opportunity

Commission, 707 F. 2d 468 (llth Cir. 1983),

the reliance upon the government agency to

supply the proper name, Williams, Supra.

at 833, to rely upon the court's inter-

pretation as to who the proper party

defendant is, Daly v. United States Depart-

ment of the Army, 869 F. 2d 593, 594 (3d

Cir. 1988), or to rely upon the EEOC's

interpretation of who the proper defendant

should be as in the instant case.

Attorneys, and especially pro se

plaintiffs, must have an appropriate

guideline for determining who the proper

party defendant should be since it more

than obviously changes from case to case.

The EEQc thought that they had managed to

put a halt to these meritorious claims

being dismissed on technicalitities when

in September of 1987 they put in their

Complaint Processing Manual the mandate

that all matters be captioned with the

name of the proper party defendant.In

the case before this Honorable Court,

their final decision listed the USPS as

the defendant. Either they are right and

the District Court is wrong, or, they

made a grave error and are looking at a

lawsuit being brought against them.

It is imperative that the Court make

a clear interpretation of the defendant

should be in these cases. Additionally,

easy access to knowing the answer must be

had. With a short statute of limitations

period, thirty days, there is no real

opportunity for extensive research or

discovery. The decisions as they stand

now are having a chilling affect on the

ability of complainants to get legal

counsel. Taking one of these cases is

like accepting an invitation to be sued

for malpractice.

It is very crucial that the courts do

not continue to make it an automatic

dismissal when they have determined that

the incorrect defendant has been named. The

facts of each case should be examined so

that the cases will not fall by the

waistside unnecessarily. For instance,

the petitioner complained that the acts

of discrimination were continuous. Thus,

the statute of limitations would be running

along with the continuous acts. Then, an

amendment, if allowed, would not have been

barred because it would have related back

to the filing of the original complaint.

Even of more importance, this Court

must show the lower courts that an excep-

tion to the Rules has been carved out by

the framers of Title VII so that litigants

would be guaranteed their day in court.

The federal courts have refused to

follow the clear dictates of 42 U.S.C.

§2000e-16(e).

CONCLUSION

For the reasons stated above, this

Petition for a Writ of Certiorari should

be granted.

Respectfully submitted:

Francine A. Gargano

113 Watchung Avenue

North Plainfield, N.J. 07060

(201) 733-2079

Attorney for Petitioner

No.

In The

Supreme Court of the United States

October Term, 1989

JOAN WARD,

Petitioner,

VS.

—I

TATES POSTAL SERVICE

’

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE THIRD CIRCUIT COURT OF APPEALS

A-1

APPENDIX A

NOT FOR PUBLICATION

YNITED STATES DISTRICT COUR

FOR THE DISTRICT OF NEW JER

JOAN WARD,

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Defendant...

BARRY, District Judge

Plaintiff Joan Ward brings this

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29 U.S.C. $791. Plaintift claims that

defendant United States Postal Service

(hereinafter "the Agency") unjustly

42)

terminated her employment because of!

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sex and physical handicap. She appeals

final decision of the Equal Employmen

Cpportunity Commission ("EEOC"), dated

A-2

February 22, 1988, affirming the final

agency decision dated June 26, 1986,

finding no discrimination based on sex or

physical handicap.

This opinion resolves, in defendant's

favor, its motion to dismiss the complaint

pursuant to Fed. R. Civ. P. 12. The Agency

asserts that (1) plaintiff failed to

name the proper party and cannot now amend

her complaint to do so and (2) plaintiff

failed to serve the defendant as required

by Fed. E,. Civits 4s

In a civil action for redress of

grievances brought under Title VII, "the

head of the department, agency, or unit,

as appropriate, shall be the defendant.”

42 U.S.C. §2000e16(c). Title VII further

provides that such civil acyion can only

be brought "[wJithin thirty days of re-

ceipt of notice of final action" taken

on plaintiff's complaint. Id. The pro-

cedural requirements of 42 U.S.C. §

A-3

2000e-16 are applicable to actions brought

against United States agencies under the

Rehabilitation Act. 29 U.S.C. §794a(a)( 1).

Plaintiff filed her complaint in

this court on March 22, 1988, within the

Statutory thirty day period. She did not

name the head of the agency --the Postmaster

General --as the defendant, as is required

by Title VII; instead, she named as the

defendant, as is required by Title VII;

? The remedies, procedures, and

rights set forth in section 717 of

the Civil Rights Act of 1964 (42

U.S.C. §2000e-16)...shall be avail-

able, with respect to any complaint

under section 791 of this title,

to any employee...aggreived by

the final disposition of such

complaint.

See also Consolidated Rail Corporation v.

Darrone, 465 U.S. 624, 627 n. 1 (1984),

Plaintiff argues that Title VII is,

at the least, ambiguous as to

whether the proper defendant

should be the individual head of

the agency, as defendant claims,

or the agency itself, as plaintiff

contends. Plaintiff's Br. at 3-5.

The Court of Appeals for the Third

Circuit has rejected plaintiff's

A-4

instead, she named as the defendant the

United States Postal Service. ~ Further-

more,plaintiff neglected at that time to

serve the summons and complaint on any

parties required to be served under Fed.

R.Civ.P. 4(d)(4)-(5): the head of the

agency, the United States Attorney for

this district, and the Attorney General

of the United States. Plaintiff served

the United States Postal Service on April

8, 1988 and served the United Staes

Attorney for the district on July 1, 1988

there is no record of service upon the

Attorney cauerel. although plaintiff's

counsel represents that service was

effected by certified mail on July 18,

1988. Gargano Aff. 45.

position, Williams v. Army and

Air Force Exchange, 830 F. 2d

27,29 (3d Cir. 1987), other judges

in this district have rejected that

position, see Johnson v. United

Postal Service, Civ. No. 85-5596,

slip op. at 3-4 (D.N.J. Sept. 24,

1986), and I have previously re-

jected that position. Odom v.

A-5

Plaintiff clearly did not institute

suit against the proper party, the Post~

master General, within the thirty day

period. Her claim can thus survive the

agencies motion to dismiss only if she

can amend her complaint to include the

Postmaster General, and if that amendment

relates back to the time when the original

complaint was filed. For the reasons that

fillow, I find that the complaint may not

be so amended.

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

the Supreme Court of the United States

addressed the plaintiff's request under

P Civ.P.12 t0 amend his complaint so as

name the proper party as defendant. The

Court enumerated the requirements which

United States Postal Service,

Civ. QO. 85-5686, slip op. at 2

(D.N.J. Jan. 13, 1988). Needless

to say, I reject that position

here.

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entity required to be notified under Fed.

R.Civ.P. 4(d)(4)-(5) or 42 U.S.C. §20000

e-l16(c). Service was never effected on

the Postmaster General, and service on

either of the other parties listed in

Rule 4--the United States Attorney and the

Attorney General--was not made until three

and one-half months after Title VII's

thirty-day period had expired. Had

3 Plaintiff contends that the commenc-

ment and prosecution of her EEOC

charge against the Postal Service

put the Postmaster General on notice

cf plaintiff's claim. Plaintiff's

Br. at 7-8. However, the Third

Circuit in Williams applied the

Rule 15 requirements to a Title

VII case in which the agency was

named in the EEOC charge, but the

head of the agency was not named

in the complaint. The Williams

court did not equate the presence

of the agency before the EEOC with

the naming of the agency head in

the judicial complainr, 830 F.2d

at 30 n.2 (noting that only service

of the judicial complaint consti-

tutes notice), and accordingly, I

reject plaintiff's argument.

A-8

plaintiff served notice on either the

United States Attorney or the Attorney

General during the 30-day period, the

Postmaster General would be deemed to

have had timely notice and, therefor,

I would have permitted the complaint to

be amended to add the Postmaster General

as a party, even at this late date. See

Fed.R.Civ.P. 15(d) (equating, for re-

lation back purposes, service upon the

Attorney General and the United States

Attorney with service upon the proper

defendant where such proper defendant

is a U.S, agency or office thereof).

Plaintiff, however, did not do so here.

The Third Circuit has recently

addressed the relation back issue under

circumstances similar to those present

here. In Williams v. Army and Air Force

Exchange, 830 F. 2d 27 (3d Cir. 1987),

plaintiff filed suit within Title VII

thirty-day period, but named as defendant

A~-9

the agency (AAFES) rather than the head of

the agency or the Secretary of Defense.

Id. at 28.¢ Service was made on the Attorney

General and on the United States Attorney

nine days after the thirty-day period

had run. Id. at 29. Noting that none of

the parties listed in Fed.R.Civ.P. 4(d)

(4)-(5) had been served within the thirty-

day limitation period, the court held that

an amendment of the complaint to name the

proper individual defendants would not

relate back because the substitute de-

fendant had not been served within the

limitation period. Id. The court recog”

nized that

the results of Schiavone are

particularly unfortunate in this

case which involves such a short

statute of limitations (30 days)

and an untutored litigant. But

amelioration of these harsh results

is for the Rules Committee, not

for this court.

tac. et 30.

4 Plaintiff obtained counsel only three

days prior to the expiration of the

thirty-day period. 830 F. 2d at 28.

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Dated:

A-11

MARYANNE TRUMP BARRY

sme Oeds

October 24, 1988

I would echo the Third Circuit's

strong suggestion to federal

agencies that they follow HHS's

lead in including in their right-

to-sue letters a clear description

of the proper parties to be named

as defendants in civil actions

brought subsequent to administra-

tive proceedings. Williams, 830 F.

44d at 31. It does not appear that

the right-to-sue letter issued

Ward included such information.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-5895

JOAN WARD,

Appellant

Vv.

UNITED STATES POSTAL SERVICE

Appeal from the United States District

Court for the District of New Jersey

D.C. Civil Action No. 88-1356

(Honorable Maryanne Trump Barry)

Submitted March 1/7, 1989

Before: MANSMANN, GREENBERG and SCIRICA,

Circuit Judges

JUDGMENT ORDER

After consideration of all contentions

raised by appellant, it is

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.