Burnham v. Veterans Affairs

• Court: District Court, D. New Hampshire
• Decided: June 29, 1995
• Docket: CV-94-662-JD
• Status: Published

Opinion

Burnham v. Veterans Affairs CV-94-662-JD 06/29/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Alice N. Burnham

v. Civil No. 94-662-JD

United States Department of Veterans Affairs, et al.

O R D E R

Pro se plaintiff Alice N. Burnham brings this civil action

against Jesse Brown, in his capacity as Secretary of the United

States Department of Veterans Affairs; the United States

Department of Veterans Affairs ("DVA"); Eugene Ochocki, Dorothy

Nelson, E. Ruth Snider1, Harriet Mercuri Redmond, Beverly

Beaulieu, Carol Delafontaine, and Linda Gross ("Manchester VA

employees"); the National Association of Government Employees

("NAGE"); Kenneth Lyons, Katherine McClure, Robert Collins,

Robert LeClair, Joseph Delorey, Paul McCarrick, and Richard

McMeniman ("NAGE employees"); the United States Egual Employment

Opportunity Commission ("EEOC") and Administrative Judge Julie

Procapiow-Todd; and Neal Lawson, assistant general counsel for

the DVA. The plaintiff asserts claims of age discrimination in

violation of section 15 of the Age Discrimination in Employment

1It is unclear from the documents filed with this court whether the defendant's name is spelled "Snider" or "Synider". Act ("ADEA"), 29 U.S.C. § 633a, against all defendants. The

plaintiff also alleges that NAGE and the NAGE employees violated

her Fifth Amendment right to procedural due process.

Presently before the court are the DVA's motion to dismiss

(document no. 22), the Manchester VA employees' motion to dismiss

(document no. 9), the EEOC and Procapiow-Todd's motion to dismiss

(document no. 19), Lawson's motion to dismiss (document no. 12),

and the NAGE employees' motion to dismiss (document no. 28).

Background

The plaintiff, a registered nurse at the Veterans

Administration Medical Center ("VAMC") in Manchester, New

Hampshire, was terminated from her position on May 29, 1992. On

December 29, 1994, she filed in this court a letter to the EEOC,

together with a letter addressed to Magistrate Judge William H.

Barry, Jr., alleging wrongful termination based on age

discrimination and procedural due process violations. The

magistrate judge found that the two letters, read together,

constituted a complaint, but dismissed the complaint for failure

to exhaust administrative remedies. Report and Recommendation of

January 23, 1995, Civ. No. 94-662-JD ("Magistrate's Report") at

2. The court granted a motion to reopen on February 8, 1995.

2 The plaintiff sent a copy of the complaint and summons to

each of the NAGE employees, with the exception of McMeniman, via

certified mail to their place of business in Quincy,

Massachusetts. The plaintiff unsuccessfully attempted to serve

McMeniman in care of Jane Bartlett, a union representative, at

McMeniman's prior place of business at the VAMC. McMeniman had

moved to the mid-west at the time of service.

Discussion

A. Subject Matter Jurisdiction

In their motions to dismiss, the DVA, Manchester VA

employees, EEOC and Procapiow-Todd, and Lawson assert that the

court lacks subject matter jurisdiction over the plaintiff's age

discrimination claim.

A motion to dismiss for lack of subject matter jurisdiction

under Fed. R. Civ. P. 12(b)(1) challenges the statutory or

constitutional power of the court to adjudicate a particular

case. 2A James W. Moore et al., Moore's Federal Practice, 1

12.07 (2d ed. 1994). As "the organization of the judicial power,

the definition and distribution of the subjects of jurisdiction

in the federal tribunals, and the modes of their action and

authority have been, and of right must be, the work of the

legislature," a federal district court has jurisdiction over the

3 subject matter only where such jurisdiction has been expressly

granted by Congress. Cary v. Curtis, 44 U.S. 236, 245 (1844).

In ruling upon a motion to dismiss for lack of subject matter

jurisdiction, "the allegations of the complaint should be

construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S.

232, 236 (1974).

These defendants argue that the head of the appropriate

agency is the only proper defendant in a federal age discrimina­

tion action. DVA's Motion to Dismiss at 1; Memorandum in Support

of the Individual Federal Employee Defendants' Motion to Dismiss

at 5-7; Memorandum of Law in Support of Defendant EEOC's Motion

to Dismiss at 3-4; Memorandum in Support of the Individual

Federal Employee Defendant Neal Lawson's Motion to Dismiss at 4-

6. Section 15 of the ADEA provides the exclusive remedy for

federal age discrimination actions, Paterson v. Weinberger, 644

F.2d 521, 524-5 (5th Cir. 1981), and preempts alternate means of

redressing age discrimination claims by federal employees.

Purtill v. Harris, 658 F.2d 134, 137 (3d Cir. 1981), cert.

denied, 462 U.S. 1131 (1983).

Because the ADEA and Title VII "share a common purpose, the

elimination of discrimination in the workplace," Lavery v. Marsh,

918 F.2d 1022, 1025 (1st Cir. 1990) (citing Oscar Meyer & Co. v.

Evans, 441 U.S. 750, 756 (1979)), and because 29 U.S.C. § 633a is

4 patterned directly after 42 U.S.C. § 200e-16 and was intended to

be "substantially similar" to it, Lehman v. Nakshian, 453 U.S.

156, 163-164, 167 n.15 (1981) (citing 118 Cong. Rec. 24397

(1972)); Lavery, 918 F.2d at 1025, it follows that "[w]hen a

provision of the ADEA can be traced to a complimentary section of

Title VII, the two should be construed consistently." Romain v.

Shear, 799 F.2d 1416, 1418 (9th Cir. 1986) (citing Oscar Mever,

441 U.S. at 756), cert. denied, 481 U.S. 1050 (1987). Under

Title VII, the only proper defendant in a civil employment

discrimination action by a federal employee is "the head of the

department, agency, or unit, as appropriate." 42 U.S.C. § 2000e-

16(c); Soto v. United States Postal Serv., 905 F.2d 537, 539 (1st

Cir. 1990), cert, denied, 498 U.S. 1027 (1991). Therefore, the

only appropriate defendant in an ADEA action by a federal

employee is the head of the appropriate department, agency, or

unit. See Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir.

1988); Ellis v. United States Postal Serv., 784 F.2d 835, 838

(7th Cir. 1986); Romain, 799 F.2d at 1418; see also Attwell v.

Granger, 748 F. Supp. 866, 873 (N.D. G a . 1990), aff'd without

opinion, 940 F.2d 673 (11th Cir. 1991); Rattner v. Bennett, 701

F. Supp. 7, 9 (D.D.C. 1988); Gillispie v. Helms, 55 9 F. Supp. 40,

41 (W.D. Mo. 1983). But see Shostack v. United States Postal

5 Serv., 655 F. Supp. 764, 765 (D. Me. 1987)2. Accordingly, the

plaintiff may bring her age discrimination claim only against the

Secretary of the DVA. The plaintiff's age discrimination claim

is dismissed as to the DVA, Manchester VA employees, EEOC and

Procapiow-Todd, and Lawson.

Additionally, although NAGE and the NAGE employees did not

assert lack of subject matter jurisdiction as a defense, the

court is obligated sua soonte to determine if subject matter

jurisdiction exists. 2A Moore's Federal Practice, 5 12.07. For

the reasons stated above, the plaintiff's age discrimination

claim against NAGE and the NAGE employees is also dismissed due

to lack of subject matter jurisdiction.

2There is some disagreement regarding the appropriate defendant in federal age discrimination actions among district courts in this circuit. Compare Parow v. Runyon, Civ. No. 94- 251-SD, slip op. at 7, 1995 WL 73343 (D.N.H. Feb. 23, 1995) and Mever v. Runyon, 869 F. Supp. 70, 76 (D. Mass. 1994) (the only proper defendant in an age discrimination action brought by a federal employee under the ADEA is the head of the agency or department that employs the plaintiff) with Shostack, 655 F. Supp. at 7 65 (agency head was not the only proper defendant brought by a federal employee under the A D E A ) . However, the majority of courts interpret the jurisdiction provision of the ADEA as parallel to Title VII.

6 B . Insufficient Service of Process

The NAGE employees3 assert that the procedural due process

claim against them should be dismissed for improper service of

process. See Fed. R. Civ. P. 12(b) (5).4 They argue that service

via certified mail is insufficient under Fed. R. Civ. P. 4(e).

Defendants' Motion to Dismiss for Insufficiency of Process

Pursuant to Federal Rule of Civil Procedure Rule 12(b)(4) ("NAGE

Employees' Motion to Dismiss"), 5 7.

Before exercising personal jurisdiction over a defendant,

the court must determine whether the procedural reguirement of

service of a summons has been satisfied. Omni Capital Int'l Ltd.

v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Although

"personal jurisdiction and service of process are distingishable.

3The magistrate judge recognized a procedural due process claim contained in pages seven and eight of the plaintiff's letter to the EEOC. These pages refer solely to NAGE and the NAGE employees. See Report and Recommendation of January 23, 1995, Civ. No. 94-662-JD at 2. The court therefore interprets the complaint as alleging due process violations only against NAGE and the NAGE employees. The court does not comment on the viability of this claim.

defendants seem to have confused a motion to dismiss for insufficiency of process under 12(b)(4) with a motion to dismiss for insufficiency of service of process under 1 2 (b)(5). A motion under rule 12(b)(4) is proper where the defendant asserts that the content of the summons is not in compliance with the provisions of Rule 4 (b). In contrast, a motion filed under rule 1 2 (b)(5) is proper where the defendant asserts that the process was not served in the manner provided by Rule 4. 2A M o o r e 's Federal Practice 5 12.07.

7 they are closely related since 'service of process is the vehicle

by which the court may obtain jurisdiction.'" Lorelei Corp. v.

County of Guadalupe, 940 F.2d 111 , 719-20 n.l (1st Cir. 1991)

(quoting Driver v. Helms, 577 F.2d 147, 155 (1st Cir. 1978)).

Thus, in order for a court to exercise jurisdiction over a

defendant there must be more than notice and a constitutionally

sufficient relationship between the defendant and the forum;

there must also be a basis for amenability to service. Omni, 484

U.S. at 104. Service must therefore be grounded on a federal

statute or Civil Rule. United Elec., Radio, and Mach. Workers v.

163 Pleasant Street Corp., 960 F.2d 1080, 1085 (1st Cir. 1992).

Rule 4 of the Federal Rules of Civil Procedure provides that

proper service may be effected in any judicial district of the

United States by personal delivery to the defendant, by delivery

to a person of suitable age at the defendant's dwelling house or

usual place of abode, or by delivery to an authorized agent.

Fed. R. Civ. P. 4 ( e ) (2). Alternatively, Rule 4 authorizes a

plaintiff to effect service by following the law of the state in

which the district court is located, or in which service takes

place. Fed. R. Civ. P. 4 (e)(1).

With the exception of McMeniman, each NAGE employee is

located in Massachusetts. NAGE Employees' Motion to Dismiss, 5

4. Therefore, the plaintiff could have properly served them pursuant to Rule 4 ( e ) (2); the law of Massachusetts, where service

was attempted; or the law of New Hampshire, where the district

court is located. McMeniman has moved to an undisclosed state in

the mid-west. NAGE Employees' Motion to Dismiss, 5 2. Therefore

the plaintiff could have properly served him pursuant to Rule

4 ( e ) (2), the law of New Hampshire, or the law of the state in

which he is located. Massachusetts allows service by personal

delivery to the defendant, by leaving copies of the complaint and

summons at the defendant's last and usual place of abode, or by

delivery to an authorized agent. Mass. R. Civ. P. 4 ( d ) (1). The

New Hampshire long-arm statute allows service upon individuals

outside the state by serving the Secretary of State for the State

of New Hampshire and sending a copy of the summons and complaint,

by registered mail, to the defendant's last known abode or place

of business in the state in which the defendant resides. N.H.

Rev. Stat. Ann. § 510:4.

The plaintiff's manner of service, delivery by registered

mail to the NAGE employees' last known place of business, does

not satisfy Rule 4 ( e ) (2), Rule 4 ( d ) (1) of the Massachusetts Rules

of Civil Procedure, or Section 510:4 of the New Hampshire Revised

Statutes. The NAGE employees are therefore correct in concluding

that they were improperly served. See NAGE Employees' Motion to

Dismiss, 5 7. Even if service of process is technically incorrect, however, a motion to dismiss will ordinarily be denied

with instructions to the plaintiff to properly complete service

if the error is easily corrected and no prejudice results. 2A

Moore's Federal Practice, 5 12.07; Rogue v. United States, 8 57

F.2d 20, 22 (1st Cir. 1988) (dismissal for failure to effect

service reversed, since the plaintiff was not directed by the

district court to undertake proper service). Given the

plaintiff's pro se status, it would be inappropriate to dismiss

the complaint for insufficiency of service of process. See

Messer v. Lounsburv, Civ. No. 90-522-L, slip op. at 1-2 (D.N.H.

Mar. 31, 1991). Accordingly, the NAGE employees' motion to

dismiss the plaintiff's due process claim is denied without

prejudice. The plaintiff shall properly serve process in

compliance with Fed. R. Civ. P. 4 by July 29, 1995.

Conclusion

For the reasons set forth above, the motions to dismiss the

plaintiff's age discrimination claim against the United States

Department of Veterans Affairs (document no. 22); Ochocki,

Nelson, Snider, Redmond, Beaulieu, Delafontaine, and Gross

(document no. 9); United States Egual Employment Opportunity

Commission and Procapiow-Todd (document no. 19); and Lawson

(document no. 12) are granted. These defendants are no longer

10 parties to this action. The plaintiff's age discrimination claim

against the National Association of Government Employees; and

Lyons, McClure, Collins, LeClair, Delorey, McCarrick, and

McMeniman is dismissed sua sponte. The motion to dismiss

plaintiff's procedural due process claim against Lyons, McClure,

LeClair, Collins, Delorey, McCarrick, and McMeniman (document no.

28) is denied without prejudice.5 The plaintiff's motion for

clarification (document no. 31) is denied. The plaintiff may

review the case file at her convenience.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge June 29, 1995

cc: Edward F. Morris, Esguire Nancy J. Dunham, Esguire U.S. Attorney Alice N. Burnham, pro se

5The plaintiff never attempted to serve the National Association of Government Employees. If she intends to do so, it must be done in compliance with Fed. R. Civ. P. 4 by July 29, 1995. Otherwise, the case against the National Association of Government Employees will be dismissed.