Minnie M. Honeycutt v. John E. Long, Major General Commander, Army and Air Force Exchange Service

861 F.2d 1346, 12 Fed. R. Serv. 3d 705, 1988 U.S. App. LEXIS 17197, 48 Empl. Prac. Dec. (CCH) 38,517, 1988 WL 127779
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 20, 1988
Docket87-1803
StatusPublished
Cited by65 cases

This text of 861 F.2d 1346 (Minnie M. Honeycutt v. John E. Long, Major General Commander, Army and Air Force Exchange Service) 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.

Bluebook
Minnie M. Honeycutt v. John E. Long, Major General Commander, Army and Air Force Exchange Service, 861 F.2d 1346, 12 Fed. R. Serv. 3d 705, 1988 U.S. App. LEXIS 17197, 48 Empl. Prac. Dec. (CCH) 38,517, 1988 WL 127779 (5th Cir. 1988).

Opinions

JERRE S. WILLIAMS, Circuit Judge:

Minnie E. Honeycutt instituted this employment discrimination suit against Major General John E. Long, in his role as Commander of the Army & Air Force Exchange Service (“AAFES”). The district court dismissed Honeycutt's suit for failure to name the proper party defendant and for insufficiency of process under Fed.R.Civ.P. 4(d)(4) and (5). We affirm.

I. Facts and Prior Proceedings

Honeycutt has been employed by the AAFES since October 23, 1967. On September 6, 1985, Honeycutt contacted an AAFES Equal Employment Opportunity counselor to complain that she had not been promoted because of her sex, age, and handicap. Honeycutt proceeded through the appropriate administrative channels, and on January 14, 1987, she received a final adverse decision from the AAFES. Honeycutt filed this suit on February 4, 1987 under Title VII, 29 U.S.C. § 2000e-16, the Rehabilitation Act, 29 U.S.C. § 791, and the Age Discrimination in Employment Act ("ADEA”), 29 U.S.C. § 633a, naming Long as the sole defendant. Honeycutt served process on Long on February 11, 1987.

On April 9, 1987, Long filed a motion to dismiss or, in the alternative, for summary judgment on the grounds that Long was not the proper party defendant and that service of process was insufficient under Fed.R.Civ.P. 4(d)(4) and (5).1 Honeycutt responded to the motion by asserting she had sued the correct party and by requesting leave to amend her complaint to add the Secretary of Defense as the named defendant under Fed.R.Civ.P. 15(c). Honeycutt also proceeded to perfect process by serving the United States Attorney for the Northern District of Texas on June 2, 1987.

A memorandum order and final judgment were issued on July 23, 1987. The district court granted the Commander’s motion to dismiss or, in the alternative, for summary judgment and denied Honeycutt’s request to amend her complaint. This appeal followed.

II. The Proper Party Defendant

A government employee has thirty days from the receipt of the final agency ruling informing her of her rights to appeal by filing a Title VII employment discrimination action.2 42 U.S.C. § 2000e-16(c); Brown v. General Serv. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Bell v. Veterans Admin. Hosp., 826 F.2d 357, 360-61 (5th Cir.1987). In this case, Honeycutt had until February 13, 1987 to file her complaint against the proper de[1349]*1349fendant. She timely filed her complaint on February 4,1987; however, she mistakenly chose Long as the defendant.

Under Title VII and the Rehabilitation Act the proper defendant is “the head of the department, agency, or unit, as appropriate.” 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(l) (adopts Title VII procedures). The Supreme Court has also held that the ADEA is to be construed in accordance with Title VII. Lehman v. Nakshian, 453 U.S. 156, 168 n. 15, 101 S.Ct. 2698, 2705 n. 15, 69 L.Ed.2d 548 (1981) (“measures used to protect Federal employees [from age discrimination] would be substantially similar to those” in Title VII); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (stating the parallel provisions of the ADEA should be construed consistently with Title VII); see also Smith v. Office of Personnel Management, 778 F.2d 258, 262 (5th Cir.1985), cert. denied, 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 358 (1986) (stating Title VII case law will be used to construe the ADEA). Thus, the appropriate defendant to be sued under the ADEA is the same person as under Title VII and the Rehabilitation Act.

Both Title VII and the ADEA specifically state that this law identifying the proper defendant applies to personnel actions affecting employees in military departments as defined in 5 U.S.C. § 102, and in executive agencies as defined by 5 U.S. C. § 105. See 42 U.S.C. § 2000e-16(a) and 29 U.S.C. § 633a(a). Military departments are defined as the Department of Army, the Department of Air Force, and the Department of Navy. 5 U.S.C. § 102. Aii executive agency means an executive department, a government corporation, and an independent establishment. 5 U.S.C. § 105. The Department of Defense is an executive department. 5 U.S.C. § 101. An independent establishment means an establishment in the executive branch which is not an executive department, military department, or part thereof. 5 U.S.C. § 104. The AAFES is a part of the Department of Defense.3 Thus, the AAFES by statutory definition is not an executive department, military department, executive agency, or independent establishment.

Clearly, the Commander of AAFES is then not the head of a “department, agency, or unit” so that he would be a proper defendant under the statute.4 A proper defendant in this case would be the head of the Department of Defense, the Secretary of Defense, since the Department of Defense is an executive department.5 Thus, Honeycutt incorrectly sued the wrong party.

III. Relation back under Fed.R. Civ.P. 15(c)

Honeycutt asserts the district court was incorrect in denying Honeycutt’s motion to amend her complaint to add the Secretary of Defense as the proper party.

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861 F.2d 1346, 12 Fed. R. Serv. 3d 705, 1988 U.S. App. LEXIS 17197, 48 Empl. Prac. Dec. (CCH) 38,517, 1988 WL 127779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minnie-m-honeycutt-v-john-e-long-major-general-commander-army-and-air-ca5-1988.