Parow v. Runyon CV-94-251-SD 02/23/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard J. Parow

v. Civil No. 94-251-SD

Marvin T. Runyon, Postmaster General, et al

O R D E R

Pro se plaintiff Richard J. Parow brings this civil action

against Postmaster General Marvin T. Runyon and against Joseph J.

Fanciullo, Leo Scott Murray, and Robert W. Gauthier, all of whom

are supervisors at the Salem, New Hampshire, Post Office where

Parow is employed. Parow asserts claims of sex discrimination in

violation of Title VII of the Civil Rights Act of 1965, age

discrimination in violation of the Age Discrimination in

Employment Act (ADEA), and a violation of his Fifth Amendment

procedural due process rights.

Presently before the court is defendants' motion to dismiss

plaintiff's sex and age discrimination claims against defendants

Fanciullo, Murray, and Gauthier under Rule 12(b)(1), Fed. R. Civ.

P., and to dismiss plaintiff's due process claim under Rules

12(b)(1) and 12(b)(6). Plaintiff, despite having been granted

three extensions of time to file a response to defendants' motion, has failed to file any response as of the date of this

order.1

Discussion

1. Standards of Review

a. Rule 12(b)(1) Standard

"When faced with a motion to dismiss for lack of subject

matter jurisdiction. Rule 12(b)(1), Fed. R. Civ. P., the party

asserting jurisdiction has the burden to establish by competent

proof that jurisdiction exists." Stone v. Dartmouth College,

(D.N.H. 1988) (citing O'Toole v. Arlington

Trust C o .,

(1st Cir. 1982); C. W r i g h t & A. M i l l e r , 5

Federal Practice and Procedure § 1350, at 555 (1969 & Supp. 1987)) .

In determining whether it is vested with the jurisdiction to

hear a case, the court construes the allegations of the complaint

in the plaintiff's favor. Scheuer v. Rhodes,

(1974). The court may also consider evidence outside the

pleadings without converting a motion to dismiss under Rule

12(b)(1) into one for summary judgment. Richmond, Fredericksburg

& Potomac R. Co. v. United States, ___ U.S. ___, 112 S. C t . 1667

(1992); Lawrence v. Dunbar,

(11th Cir. 1990).

1In granting plaintiff's third motion to extend time, the court extended plaintiff's time to respond to defendants' motion to February 6, 1995.

2 b. Rule 12(b)(6) Standard

When a court is presented with a motion to dismiss filed

under Rule 12(b)(6), Fed. R. Civ. P., "its task is necessarily a

limited one. The issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974) .

In reviewing the sufficiency of a complaint, the court

accepts "the factual averments contained in the complaint as

true, indulging every reasonable inference helpful to the

plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Fed.

Bank, F .S .B .,

(1st Cir. 1992). Applying this

standard, the court will grant a motion to dismiss "'only if it

clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory.'"

(guoting

Correa-Martinez v. Arrilaqa-Belendez,

(1st Cir.

1990)) .

2. The Discrimination Claims

Defendants move to dismiss plaintiff's Title VII and ADEA

claims against defendants Fanciullo, Murray, and Gauthier on the

ground that they are not proper defendants.

3 a. Title VII Claims (Counts I and II)

When an employee of the federal government brings a civil

action for employment discrimination. Title VII reguires that

"the head of the department, agency, or unit, as appropriate,

shall be the defendant." 42 U.S.C. § 2000e-16 (1994) (emphasis

added). "In cases brought against the Postal Service, the

Postmaster General is the only properly named defendant." Soto

v. United States Postal Service,

(1st Cir.

1990) (citing Rys v. United States Postal Service,

(1st Cir. 1989)), cert, denied,

(1991). "A

district court should dismiss claims brought against all other

defendants, including the U.S. Postal Service[,] the local

postmaster[,]" id., and the employee's local supervisors,

.

Plaintiff's Title VII claims are herewith dismissed as to

defendants Fanciullo, Murray, and Gauthier.

b. ADEA Claim (Count III)

Claims of age discrimination by federal employees are

governed by section 15 of the ADEA, 29 U.S.C. § 633a. Section 15

does not specify who can be named as a defendant in an age

discrimination suit brought by a federal employee. See 29 U.S.C.

§ 633a. However, the First Circuit has recognized that

4 the ADEA amendment prohibiting federal-sector age discrimination [29 U.S.C. § 633a] was patterned after 42 U.S.C. § 2000e-16(a), (b) , the amendments to Title VII extending that statute's protection to federal employees. The federal employment age discrimination amendment was thus intended to be "'substantially similar to'" the federal workplace counterpart in Title VII.

Lavery v. Marsh,

(1st Cir. 1990) (citing and

guoting Lehman v. Nakshian,

, 167 n.15 (1981)

(guoting remarks of Senator Bentsen, 118 Cong. Rec. 24397

(1972))). "When a provision of the ADEA can be traced to a

complimentary section of Title VII, the two should be construed

consistently." Romain v. Shear,

(9th Cir.

1986) (citing Oscar Mayer & Co. v. Evans,

(1979)), cert, denied,

(1987).

The First Circuit has not yet addressed the issue of whether

the only proper defendant in a civil action brought under 29

U.S.C. § 633a is the head of the appropriate department, agency,

or unit.2 Other circuits having addressed the issue have

uniformly held that the only proper defendant in such an ADEA

2The two district courts in this circuit that have considered the issue are in disagreement. Compare Mever v. Runyon,

(D. Mass. 1994) (the only proper defendant in an ADEA action brought by a federal employee is the head of the federal agency or department that employs the plaintiff), with Shostak v. United States Postal Service,

(D. Me. 1987) (the ADEA does not limit whom a federal employee can properly name as a defendant in a civil action brought under 29 U.S.C. § 633a).

5 action is the head of the appropriate department, agency, or

unit. See Honeycutt v. Long,

(5th Cir.

1988); Ellis v. United States Postal Service,

(7th Cir. 1986);

. See also

Attwell v. Granger,

(N.D. G a . 1990), aff'd

without opinion,

(11th Cir. 1991); Rattner v.

Bennett,

(D.D.C. 1988).

This court agrees with the reasoning employed and the

results reached by the above-cited courts. Title 29 U.S.C. §

633a is patterned directly after 42 U.S.C. § 2000e-16. E.g.,

. The purposes of both

sections are identical--to eliminate discrimination in employment

by the federal government. Further, the measures used to protect

federal employees from age discrimination in section 633a were

intended to be "substantially similar to those incorporated" in

42 U.S.C. § 2000e-16.

-67 n.16

(citing 118 Cong. Rec. 24397 (1972)). It follows that claims of

discrimination brought by federal employees under the ADEA should

be subject to the same reguirements as claims of discrimination

brought by such employees under Title VII, including the

reguirement that the head of the appropriate department, agency,

or unit "shall be the defendant." 42 U.S.C. § 2000e-16(c). The

court further notes that applying this reguirement to

6 633a does not in any way impede the purposes of the ADEA or

interfere with the ADEA's remedial scheme.

; Gillispie v. Helms,

(W.D. Mo.

1983) .

Accordingly, the court rules that the only proper defendant

to plaintiff's ADEA claim is the Postmaster General. Plaintiff's

ADEA claim is therefore dismissed as to defendants Fanciullo,

Murray, and Gauthier.

3. The Due Process Claim (Count IV)

In Count IV of his complaint, Parow alleges that the

defendants violated his procedural due process rights by changing

his seniority date, thereby causing him to lose seniority status,

without notice and an opportunity to protect his interests.

Complaint 55 24, 47. Parow, working with his American Postal

Workers' Union representative, has attempted to resolve this

seniority issue through established grievance procedures.

55

26-27. However, those efforts have been unsuccessful.

5 28.

Parow does not indicate in his complaint whether he is

asserting his due process claim against defendants Fanciullo,

Murray, and Gauthier in their individual capacities. However,

because Parow is pro se, the court assumes for purposes of this

order that said defendants are named in their individual

7 capacities.

The Supreme Court has permitted

[s]o-called "Bivens actions"3 for money damages against federal officials under [28 U.S.C.] § 1331 for violations of the Due Process Clause of the Fifth Amendment . . . [when the Court has] found that there were no "special factors counselling hesitation in the absence of affirmative action by Congress," no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy.

Schweiker v.Chilicky,

(1988) (citing Davis v.

Passman,

(1979)). However, "[w]hen Congress

creates a comprehensive remedial scheme, Bivens actions cannot be

used to supplement that scheme." Pereira v. United States Postal

Service,

(9th Cir. 1992) (citing Bush v. Lucas,

(1983);

).

See also Pipkin v. United States Postal Service,

(10th Cir. 1991) ("When Congress has acted to create a

comprehensive statutory scheme to address a particular class of

claims, the courts will not act to create additional judicial

remedies . . . . " ) . "This is particularly true in federal

employment relationships, where Congress has provided a

3In Bivens v. Six Unknown Fed. Narcotics Agents,

(1971), the Supreme Court permitted the plaintiff to bring a civil action in federal court for money damages against federal officers for the violation of plaintiff's Fourth Amendment rights by those officers. comprehensive civil service scheme to address disputes."

.

Congress has created a comprehensive scheme governing

employment within the Postal Service and employee-management

agreements as part of the Postal Reorganization Act,

, 1201-1209 (1980 & Supp. 1994). The Act includes a

provision expressly authorizing the Postal Service to agree to

collective-bargaining agreements between the Postal Service and

bargaining representatives that "include any procedures for

resolution by the parties of grievances and adverse actions

arising under the agreement, including procedures culminating in

binding third-party arbitration . . . ."

(b).

The collective bargaining agreement governing plaintiff's

employment provides grievance procedures, including binding

arbitration, to resolve disputes such as plaintiff's disagreement

with his change in seniority. See Agreement between United

States Postal Union, AFL-CIO, National Assoc, of Letter Carriers,

AFL-CIO, 1990-1994 (attached to Defendants' Motion).

Because the comprehensive scheme established by Congress in

the Postal Reorganization Act to address disputes arising from an

individual's employment with the Postal Service provides a remedy

for plaintiff's claim regarding his change in seniority, the

court finds that said scheme precludes plaintiff from asserting a separate Bivens claim against defendants Fanciullo, Murray, and

Gauthier. E.g.,

(precluding

the use of Bivens actions to supplement the remedial scheme of

the Postal Reorganization Act);

("Because Congress has provided a comprehensive procedure to

address postal employees' constitutional claims arising from

their employment relationship with the USPS, those arbitration

procedures preclude plaintiffs' Bivens claims.").

The court further finds that, to the extent that Count VI

can be read to assert a due process claim against the Postmaster

General as head of the Postal Service, said claim is also

precluded by the comprehensive remedial scheme created by the

Postal Reorganization Act and embodied in the collective-

bargaining agreement governing plaintiff's employment with the

Postal Service. E.g., Roman v. United States Postal Service,

(7th Cir. 1987) (affirming district court's

dismissal of plaintiff's due process claim against the Postal

Service because plaintiff's rights were protected by the

collective-bargaining agreement governing his employment).

Defendants' motion to dismiss plaintiff's due process claim

is therefore granted.

10 Conclusion

For the reasons set forth herein, defendants' motion to

dismiss plaintiff's sex and age discrimination claims as to

defendants Fanciullo, Murray, and Gauthier and to dismiss

plaintiff's due process claim as to all defendants is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

February 23, 1995

cc: Richard J. Parow, pro se Gretchen Leah Witt, Esg.

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