Joe T. Gonzales v. Secretary of the Air Force and the Department of the Air Force, Defendants

824 F.2d 392, 8 Fed. R. Serv. 3d 825, 1987 U.S. App. LEXIS 10955, 44 Empl. Prac. Dec. (CCH) 37,325, 44 Fair Empl. Prac. Cas. (BNA) 971
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 18, 1987
Docket86-1609
StatusPublished
Cited by29 cases

This text of 824 F.2d 392 (Joe T. Gonzales v. Secretary of the Air Force and the Department of the Air Force, Defendants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Joe T. Gonzales v. Secretary of the Air Force and the Department of the Air Force, Defendants, 824 F.2d 392, 8 Fed. R. Serv. 3d 825, 1987 U.S. App. LEXIS 10955, 44 Empl. Prac. Dec. (CCH) 37,325, 44 Fair Empl. Prac. Cas. (BNA) 971 (5th Cir. 1987).

Opinions

E. GRADY JOLLY, Circuit Judge:

In this employment discrimination action, the appellant, Joe T. Gonzales, argues that the district court erred in dismissing his complaint for his failure to sue the proper party within the required thirty-day statutory filing period. Based on the Supreme Court’s decision in Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the district court held that Gonzales’s amendment to his complaint naming the Secretary of the Air Force (“the Secretary”) as a defendant, the only proper party sued or served, did not relate back under Fed.R.Civ.P. 15(c) to the original date of the filing. We affirm.

I

In December 1980, the Department of the Air Force (“the Department”) did not select Gonzales for a warehouse-foreman position at Goodfellow Air Force Base in Texas. Claiming discrimination on the basis of race and national origin, Gonzales filed a timely formal administrative claim on January 7, 1981. During the next four years, he diligently pursued his administrative remedies in accord with Department instructions and procedures. After exhausting his administrative remedies, Gonzales filed suit in the district court pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., naming the Department as the sole defendant. Gonzales filed his federal court complaint against the Department within the thirty-day statutory filing period as required by 42 U.S.C. § 2000e-16(c).1 He [394]*394served process on the Department on April 30, 1985, which was after the thirty-day filing period had expired, and served the United States Attorney on July 24, 1985.

On April 30,1986, the Department moved to dismiss Gonzales's complaint, arguing that Gonzales had not complied with 42 U.S.C. § 2000e-16(c) because he failed to sue the Secretary within thirty days of receiving notice of the final decision of the Equal Employment Opportunity Commission (“EEOC”). Gonzales requested and was granted leave to amend his complaint, adding the Secretary as a defendant. Based on precedent in this circuit that interpreted Fed.R.Civ.P. 15(c)2 liberally, Hendrix v. Memorial Hosp. of Galveston County, 776 F.2d 1255 (5th Cir.1985), Kirk v. Cronvich, 629 F.2d 404 (5th Cir.1980), the district court held that notwithstanding Gonzales’s failure to sue and serve the Secretary within thirty days of receiving the EEOC’s final decision, he could amend his complaint to add the Secretary as a defendant. Under Hendrix, the amendment would relate back “to the original filing date of the complaint even though it [took] a reasonable amount of time after the limitations period to serve process upon the original party defendant.” Hendrix, 776 F.2d at 1257.

After the district court granted leave to amend the complaint, the Supreme Court rendered its decision in Schiavone, 106 S.Ct. 2379. The district court granted the defendants’ motion to reconsider its previous order, and, based on Schiavone, granted the defendants’ motion to dismiss Gonzales’s complaint. Gonzales v. Secretary of the Air Force, 638 F.Supp. 1323 (N.D.Tex.1986). The court held that because Gonzales did not serve the Department within the required thirty-day statutory period, there was no proper notice to the Department that could be imputed to the Secretary. Because no notice was given before the time limitation had expired, Gonzales could not amend his complaint to sue the proper party, and his complaint was dismissed. Id. at 1325. Gonzales appealed.

II

The district court correctly held that this case is controlled by Schiavone. In Schia-vone, the plaintiffs timely sued Fortune Magazine for libel within New Jersey's one-year statute of limitations. “Fortune,” however, was only a trademark and the name of an internal division of Time, Incorporated (“Time”). The plaintiffs then attempted to serve process on Time’s registered agent in New Jersey. The agent refused service because Time was not a named defendant in the suit. After the [395]*395statutory filing period had expired, the plaintiffs amended their respective complaints to add Time as a defendant, and subsequently served process on Time. The district court dismissed the complaint, holding that the amendment did not relate back to the date of the original filing under Rule 15(c) because Time did not receive notice of the institution of the libel actions “within the period provided by law for commencing the action against [it].” Schiavone, 106 S.Ct. at 2381-82.

The Supreme Court affirmed and set forth four factors upon which “relation back” of an amended pleading under Rule 15(c) depends:

(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it, and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.

Id. at 2384. The Court clearly stated that all four factors must be satisfied before relation back will apply. Id.

Like the plaintiffs in Schiavone, Gonzales has satisfied the first factor; the problem in this case lies with his satisfaction of the remaining factors. Reviewing the record, we have determined that the following dates are critical in the disposition of this case: (1) Gonzales received notice of the final agency decision on March 15, 1985, and he filed suit against the Department on April 12, 1985, within the thirty-day statutory time period; (2) on April 30, 1985, Gonzales served process on the Department, which was after the thirty-day time period had expired; (3) Gonzales served the United States Attorney on July 24, 1985; (4) the court permitted Gonzales to amend his complaint, adding the Secretary as a defendant, on May 21, 1986; and (5) Gonzales served the amended complaint on the Secretary on June 2, 1986.

The record thus shows that the means Gonzales used for notifying the defendants of his federal action was service of process on the Department, the United States Attorney, and the Secretary. As the above dates indicate, however, each party received this notice after expiration of the prescribed thirty-day limitations period of 42 U.S.C. § 2000e-16(c).

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824 F.2d 392, 8 Fed. R. Serv. 3d 825, 1987 U.S. App. LEXIS 10955, 44 Empl. Prac. Dec. (CCH) 37,325, 44 Fair Empl. Prac. Cas. (BNA) 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-t-gonzales-v-secretary-of-the-air-force-and-the-department-of-the-air-ca5-1987.