Pearison v. Pinkerton's Inc.

90 F. App'x 811
Court of Appeals for the Sixth Circuit·Decided January 23, 2004·No. No. 03-5491·Published·Cited by 24 cases

Opinion

ORDER

Sammy R. Pearison, a Tennessee resident proceeding pro se, appeals a district court judgment dismissing his employment discrimination action brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e, et seq.), its counterpart in Tennessee state law, the Tennessee Human Rights Act (“THRA”) (Tenn.Code Ann. §§ 4-21-101 to 4-21-401), and the Americans with Disabilities Act (“ADA”) (42 U.S.C. §§ 12101, et seq.). This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this [812] panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Pearison, an African-American, is a former employee of Pinkerton’s, Inc. (“Pinkerton’s”). He worked for Pinkerton’s as a security guard until he resigned his employment on September 30, 1998. On May 13, 2002, Pearison filed his complaint claiming race discrimination in employment. He also alleged that he was discriminated against because of an undisclosed disability in violation of the ADA. Pearison named Pinkerton’s, as well as several individuals (Deborah Leatherber-ry, Guy D. Thomas, Don Walker, Thomas Clark, Melody A. Fletcher, and Joseph Downs, Jr.), as defendants.

On September 16, 2002, the district court granted Pinkerton’s motion for partial summary judgment on Pearison’s ADA claim. The court held that Pearison failed to exhaust his administrative remedies with respect to this claim. The individual defendants were never served and the complaint against them was dismissed, without prejudice, by order dated November 4, 2002, after Pearison failed to demonstrate good cause as to why he failed to effect service on these individuals within the time prescribed by Fed.R.Civ.P. 4(m).

On October 11, 2002, Pinkerton’s filed a motion pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the Title VII claim on the ground of lack of subject matter jurisdiction. Pinkerton’s argued that subject matter jurisdiction was lacking because Pearison did not file his complaint in the district court within ninety-days of his constructive receipt of the right-to-sue (“RTS”) notice mailed to him by the Equal Employment Opportunity Commission (EEOC”) on October 31, 2001, as required by 42 U.S.C. § 2000e-5(f)(1). Pearison opposed the motion to dismiss claiming that he did not actually receive the RTS notice because the EEOC mailed it to his former residence at 2624 Glenwood Parkway, Apt. 3, Chattanooga, TN 37404.

The district court reserved ruling on Pinkerton’s motion so that the parties could supplement the record with a more complete explanation of the relevant facts. Pinkerton’s filed a supplemental brief in support of its motion to dismiss and requested the court to treat the motion to dismiss as one for summary judgment since the court intended to rely on documents and proof outside the pleadings. The district court agreed with Pinkerton’s and converted the motion to dismiss into one for summary judgment pursuant to Fed.R.Civ.P. 12(b) and 56. Ultimately, after reviewing the record as supplemented by the parties, the court granted Pinkerton’s summary judgment motion after concluding that the Title VII claim was time-barred because Pearison did not notify the EEOC of his change of address and did not file suit in the district court within ninety days after constructive receipt of the RTS notice from the EEOC as required by 42 U.S.C. § 2000e-5(f)(l). This appeal followed.

Pearison does not reassert his ADA claim on appeal. Issues raised in the district court, but not on appeal are considered abandoned and are not reviewable. Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 881 (6th Cir.1996); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991). Thus, this claim will not be considered.

We review the district court’s dismissal of a complaint for failure to serve the defendants under an abuse of discretion standard of review. See Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996). Upon review, we conclude that the district court did not abuse its discretion when it dismissed Pearison’s complaint against the individual defendants pursuant to Fed.R.Civ.P. 4(m). Id. at 219. Pearison has not shown good cause for his failure under Rule 4(m). He [813] did not make a reasonable, diligent effort to timely effect service of process. There is no indication that Pearison ever read or made a good faith attempt to follow and comply with Fed.R.Civ.P. 4(e), Tenn. R. Civ. P. 4.04(10), and the rules governing service of process by mail.

We review an order granting summary judgment de novo and use the same standard as used by the district court. See EEOC v. Prevo’s Family MM., Inc., 135 F.3d 1089, 1093 (6th Cir.1998); Barrett v. Harrington, 130 F.3d 246, 251 (6th Cir. 1997). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Prevo’s Family Mkt., 135 F.3d at 1093 (citing Fed.R.Civ.P. 56(c)).

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Pearison v. Pinkerton's Inc., 90 F. App'x 811 (6th Cir. 2004).

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