Opinion
Civil Action No. 3:97-CV-3188-L.
June 7, 2000.
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Motion to Dismiss, filed March 10, 1998. The court has carefully considered the motion, response, record evidence, and the applicable law. For the reasons that follow, Defendants' Motion to Dismiss is granted.
I. Factual and Procedural Background
Plaintiff Nestor LaPastora is an individual formerly employed as a security guard at the Naval Air Station Joint Reserve Base located in Fort Worth, Texas (the "Base"). The lead Defendant in this action is identified by Plaintiff as "Employing Agency, 301st SPTG/DPCE (Security Police Training Group)." This Defendant, commonly known as the 301st Support Group, is a subunit of the United States Air Force. Defendant Marlys Karsh ("Karsh") was a civilian employee of the Air Force who worked as Chief, Workforce Effectiveness for the 301st Support Group. Defendant Juandell Wetterling ("Wetterling") was a civilian employee who served as an Employee Relations Specialist for the 301St Support Group. Defendant Kenneth Hudson ("Hudson") was at all times relevant to this lawsuit a civilian employee who held the position of Security Guard Supervisor for the 301St Support Group. Defendant Col. Bob Efferson ("Efferson") was at all relevant times an officer in the Air Force assigned to the 301St Fighter Wing at the Base as an Air Commander.
Plaintiff worked as a security guard for the 301st Support Group in 1994 and 1995. In late 1994, Plaintiff suffered a back injury and was absent from work for a period of time. Plaintiff returned to work in November 1994. In May 1995, Plaintiff was offered and accepted a $25,000 Voluntary Separation Incentive Plan ("VSIP") to leave his job with the Air Force.
Sometime after leaving his job with the Air Force in May 1995, Plaintiff applied for disability retirement benefits through the federal government's Office of Personnel Management ("OPM"). In September 1995, Plaintiff was notified by OPM that his application for disability benefits had been approved, but that disability payments would not start until OPM received additional information from his employing agency. OPM sent a letter to the 301st Support Group asking for certain information and documents regarding Plaintiff's employment with the agency. On November 1, 1995. Karsh sent OPM a response letter stating that Plaintiff left the agency by voluntarily resigning to accept the VSIP. On February 5, 1996, OPM reversed its earlier decision to award disability retirement benefits to Plaintiff. Plaintiff was so advised, was given a copy of Karsh's letter to OPM, and was granted an opportunity to respond. Plaintiff's responded and his position was rejected by OPM. OPM issued a final decision denying Plaintiff disability benefits on March 21, 1996.
Plaintiff timely appealed OPM's decision to the Merit Systems Protection Board ("MSPB"). The MSPB rejected his appeal and found that Plaintiff failed to demonstrate that he was disabled and therefore qualified to receive disability retirement benefits. On February 18, 1997, the MSPB issued its final decision denying Plaintiff's disability claim and advising Plaintiff of his right to appeal the decision. The MSPB's order stated that Plaintiff could continue pursuing his discrimination claim by appealing to the Equal Employment Opportunity Commission ("EEOC"), could pursue his discrimination and his other claims by filing suit in federal district court, or, if he decided not to appeal his discrimination claim, could request review of the MSPB's decision by the United States Court of Appeals for the Federal Circuit.
Plaintiff appealed to the Federal Circuit, which rejected his appeal and sustained the MSPB's decision on July 28, 1997. Plaintiff also filed this suit in the United States District Court for the District of Hawaii on March 11, 1997. The case was subsequently transferred to this court on December 8, 1997. Defendants filed their Motion to Dismiss on March 10, 1998, and the motion is now ripe for the court's consideration.
Plaintiff has pleaded his discrimination claims under Title VII, 42 U.S.C. § 2000e, et seq., although he claims that Defendants discriminated against him based on his "medical conditions/restriction, or handicap." Complaint at p. 2. Because Plaintiff is proceeding pro se, the court liberally construes his complaint as one brought under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791, et seq.
See Order entered December 8, 1997.
II. Defendants' Motion to Dismiss
Defendants move to dismiss Plaintiff's claims on various grounds pursuant to Rule 12 of the Federal Rules of Civil Procedure. Specifically, Defendants move to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction, insufficiency of process, insufficiency of service of process, and failure to state a claim upon which relief can be granted. The court will address each of these arguments individually.
A. Claims Against Wetterling, Karsh, Hudson, and Efferson
Defendant Wetterling maintains that Plaintiff's claims against her should be dismissed for insufficiency of process and insufficiency of service of process because she has not been served with summons in this action. Plaintiff's complaint was filed on March 11, 1997, over three years ago, and the 120 day deadline for service of process pursuant to Fed.R.Civ.P. 4(m) has long since passed. In his response, Plaintiff states that he has been unable to serve Wetterling because she has retired from federal service. Plaintiff now says he is willing to locate Wetterling and serve her with the summons and Complaint. He offers no excuse as to why he did not locate and serve Wetterling within the 120 days allowed by Rule 4(m).
Even if the court were to permit Plaintiff to locate and serve Wetterling, it finds that doing so would be futile because Wetterling is not a proper defendant. In Title VII and Rehabilitation Act cases brought by federal employees, the proper defendant is the head of the department, agency, or unit as appropriate. 42 U.S.C. § 2000e-16 (c); Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988); Ynclan v. Department of the Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991). This law identifying the proper defendant applies to actions brought by employees of military units as defined in 5 U.S.C. § 102, including the Department of the Air Force. Honeycutt, 861 F.2d at 1349. Wetterling does not qualify as a department, agency, or unit head and thus is not a proper defendant here. Plaintiff's claims against Wetterling must be dismissed with prejudice. See Ynclan, 943 F.2d at 1390 (in case against the Air Force, only proper defendant was the Secretary of the Air Force); Montgomery v. United States Postal Service, 867 F.2d 900, 902 (5th Cir. 1989) (Postmaster General is the only proper defendant in a Title VII action against the Postal Service). For this same reason, Plaintiff's claims against Karsh, Hudson, and Efferson must be dismissed. As individual employees or officers of the Air Force, they are not department heads as required by the statute and cannot be liable to Plaintiff. Honeycutt, 861 F.2d at 1349.
The individual Defendants Wetterling, Karsh, Hudson and Efferson further argue that Plaintiff's claims against them should be dismissed even if the court construes Plaintiff's Complaint to allege a deprivation of civil rights pursuant to 42 U.S.C. § 1981, 1983 or 1985. The court does not construe the Complaint as alleging civil rights violations under any of these statutes; however. even if it did, the Rehabilitation Act is the exclusive remedy for claims of disability discrimination in federal employment. See Brown v. Genl. Services Administration, 425 U.S. 820, 835 (1976) (Title VII case); Jackson v. Widnall, 99 F.3d 710, 716 (5th Cir. 1996) (Title VII case); Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997) (Title VII provides exclusive remedies to federal workers alleging employment discrimination). The court treats Plaintiff's claims for conspiracy and obstruction of justice similarly, and finds that they are barred due to the exclusivity of Plaintiff's employment discrimination remedies.
Although Plaintiff's claims fall under the Rehabilitation Act rather than Title VII, the Rehabilitation Act explicitly makes Title VII's "remedies, procedure, and rights" available to federal employees who suffer disability discrimination. 29 U.S.C. § 794a; Ynclan, 943 F.2d at 1390 n. 1; Velazquez Rivera v. Danzig, 81 F. Supp.2d 316, 319 n. 4 (D.P.R. 2000).
B. Claims Against the Department of the Air Force
Because the 301st Support Group is a subunit of the United States Air Force, Plaintiff's suit against the 301st Support Group is actually a suit against the Department of the Air Force. The Department of the Air Force (the "Air Force") argues that it has never been properly served with process. Service upon an agency of the United States is governed by Fed.R.Civ.P. 4(i)(2), which states:
[s]ervice upon an officer, agency, or corporation of the United States shall be effected by serving the United States in the manner prescribed by paragraph (1) of this subdivision and by also sending a copy of the summons and of the complaint by registered or certified mail to the officer, agency, or corporation.
Paragraph (1), subsections (A) and (B) require that a copy of the summons and complaint be served on the United States Attorney for the district in which the action is brought, as well as the Attorney General of the United States in Washington, D.C. Fed.R.Civ.P. 4(i)(1)(A) and (B). It appears that Plaintiff served the Attorney General of the United States and the United States Attorney for the District of Hawaii, the district where this action was originally filed. Plaintiff, however, has never named Air Force Secretary Sheila Widnall ("Widnall") as a defendant herein and has not served the Secretary with the summons and complaint.
Plaintiff's Separate and Concise Statement of Facts in Opposition to Defendants' Motion to Dismiss ("Plaintiff's Response") at Exh. B pp. 3-4.
The Air Force argues that even if the court were to permit Plaintiff to amend his pleadings to name Widnall as a defendant, Plaintiff's discrimination claim would still fail because he has not exhausted his administrative remedies with respect to that claim. Federal law requires federal employees to exhaust their available administrative remedies before bringing a discrimination suit in federal court. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997); Hampton v. IRS, 913 F.2d 180, 182 (5th Cir. 1990). The applicable regulation gives the complainant 45 days to contact his agency's EEO counselor regarding the agency's alleged discriminatory conduct. 29 C.F.R. § 1614.105 (a)(1); Roberts v. U.S. Postmaster General, 947 F. Supp. 282, 285 (E.D. Tex. 1996); Rodgers v. Scott, 901 F. Supp. 224, 228 (N.D. Tex. 1995). This time period is subject to equitable tolling where the complainant is unaware that the discriminatory action has occurred, is unaware of the time limitations, or despite due diligence is unable to contact the EEO officer in a timely fashion. 29 C.F.R. § 1614.105 (a)(2); Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992). After a final agency decision is rendered, the employee may appeal to the EEOC. 29 C.F.R. § 1614.106; Roberts, 947 F. Supp. at 285.
The gravamen of Plaintiff's Complaint seems to be that Karsh's letter to OPM, which apparently affected OPM's decision to reverse its earlier award of benefits, resulted from an intent to discriminate against Plaintiff on account of his alleged disability. Plaintiff was informed on February 5, 1996 that OPM had decided to rescind his disability benefits based upon the information provided in Karsh's letter. He then had 45 days to file his administrative complaint with the Air Force's EEO officer. It is undisputed that he never did so, and therefore his disability claim must fail because he did not exhaust his administrative remedies. Furthermore, it is now too late to file an administrative claim, and thus his disability claim is also barred by limitations. Plaintiff makes no argument that the 45 day time limit should be equitably tolled. The court agrees that Plaintiff's claims are barred by his failure to exhaust his administrative remedies by filing a complaint with the agency's Equal Employment Opportunity officer within 45 days of learning of OPM's decision, which clearly referred him to Karsh's November 1995 letter, which is the alleged act of discrimination. Based upon the undisputed facts, viewed in the light most favorable to Plaintiff, Plaintiff's discrimination complaint fails to state a claim upon which relief can be granted. Therefore, Plaintiff's claims against the Air Force must be dismissed with prejudice. III. Conclusion
Because the court has granted Defendants' Motion to Dismiss on the above-stated grounds, it finds that there is no need to address the additional arguments for dismissal urged by the Air Force. See Defendants' Memorandum of Law in Support of Motion to Dismiss at pp. 13-19.
For the reasons previously stated herein, Defendants' Motion to Dismiss is granted, and all of Plaintiff's claims are dismissed with prejudice. Judgment will be entered by separate document.
With respect to the dismissal of claims under Fed.R.Civ.P. 12 (b)(6), the court has treated Defendants' motion as one for summary judgment as provided in Fed.R.Civ.P. 56 because the parties presented matters outside the pleadings, and the court relied on those matters for disposition of the motion.