# Petition for Writ of Certiorari — Ward v. United States Postal Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1637%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 846 ## Text FIiLE™ F. SPANIOL, JR CLERK ii TABLE OF CONTENTS Page QUESTION PRESERTED.» t 4 Go — Cc) WM) t G € © 4?) “~ sa t ct fe a0) 29 U.S.C. $791. Plaintift claims that defendant United States Postal Service (hereinafter "the Agency") unjustly rh > 42) ry terminated her employment because of! SJ) ie) sex and physical handicap. She appeals ct 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. amendment such an before nal 1e@ origi + } oe | arisen ¥¢e 49] rh “™~ CN —_ em 4 oo WY) gq 3 i E ae) oN G&G YO vr re ey & rit o0 a g& oO ‘ct ba 00 -Q oT | be 6D O ae) aH J Py Gc ‘ct by a i 4 WH Y o GA +) wo -~ a oH & ‘— Tm GG ri @ = on oO sd ew ao aA 4 rd UO Ww © oO 48] 09) aa 30 6D « 2 Pr O +7 4 ri fa + a G&G VY wv oa WV rit A-7 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. 09) M + m 19) a ey) ct an | M ae pas m O de the insta the substi ys late, a +hroeo and Cnhree aii om | = i the pic + T @ ct 08 }. a | ct > Sa @ 4 onetneiess . a a ? - nes + Ft r+ r Yr c ¢ - + rs — + nN +ho nr + , ce + . L ~~ L + AT ~ ao + - a - > & U — + ~ -~- _ A = ~ nr + Ion ct i WV) 4 © ct ty | 3 three days A ' Gang pro se (T 9 . —— +} nGe@ez Lat S ; . 4 A n+ a qenied i © ,ot ) ®t < ~ ~ — - ~ 3 9 4 oa + ~ + ~ + 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1637%3A1. Public record. Not legal advice.