Dzanku v. United States Employment Opportunity Commission
District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting 12 Motion to Dismiss for Failure to State a Claim. (Castles, Martin)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MEGAN J. BRENNAN,
Postmaster General of the United States, )
MENSAH MANFRED DZANKU,
MEMORANDUM OF DECISION AND ORDER
September 6, 2017
Mensah Manfred Dzanku (“Dzanku” or “Plaintiff”) has filed an Amended Complaint
(Docket No. 6) against Megan J. Brennan, Postmaster General of the United States (“Postmaster
General”)1 alleging claims for discrimination based on race, in violation of Title VII of the Civil
Dzanku originally filed suit against the United States Equal Employment Opportunity Commission
(“EEOC”). See Complaint (Docket No. 1). This Court advised him that the EEOC is not the proper defendant and
gave him thirty-five days to file an amended complaint naming his former employer as defendant. See Mem. And
Order, dated August 9, 2016 (Docket No. 5)(“Prior Order”). Dzanku then timely filed his Amended Complaint
naming the United States Postal Service as defendant. However, in suits brought against the United States Postal
Service under Title VII, the head of the agency, i.e., the Postmaster General, is the only properly named defendant.
See 42 U.S.C. §2000e-16(c). There appears to be a split of authority as to whether Postal Service or the Postmaster
General is the appropriate party for suits brought under the ADEA. See Ellis v. U.S. Postal Service, 784 F.2d 835
(7th Cir. 1986)(Postmaster General is appropriate party under ADEA), Meyer v. Runyon, 869 F.Supp.70, 76
(D.Mass. 1994)(same); but see Shostak v. United States Postal Service, 655 F.Supp. 764 (D.Me. 1987)(ADEA does
not require that claims brought against the United States Postal Service be brought only against Postmaster General).
The prevailing position appears to be that like Title VII, the proper party to an ADEA action is the Postmaster
General. Accordingly, Dzanku’s Amended Complaint is subject to dismissal for failure to name the proper party.
However, for purposes of its motion, the Postmaster General does not seek dismissal of the Amended Complaint on
Rights Act of 1964, 42 U.S.C. '2000e, et seq., and age, in violation of Age Discrimination and
Employment Act (“ADEA”) of 1967, 29 U.S.C. §633a, et seq.
This Memorandum of Decision and Order addresses Defendant’s Motion To Dismiss, Or,
In The Alternative, For Summary Judgment (Docket No. 12). For the reasons set forth below,
the Defendant’s motion to dismiss is granted.
The following facts are stated in a light most favorable to the Plaintiff, as the non-moving
By letter dated October 26, 2011, the United States Postal Service (“Postal Service”)
informed Dzanku that his employment as a Postal Support Employee had been terminated.
Dzanku first contacted an Equal Employment Opportunity (“EEO”) counselor in 2014.2 Dzanku
reported the date of the incident as October 18, 2011.
On August 13, 2015, the EEOC sent Dzanku a Dismissal and Notice of Rights
(“Dismissal Notice”) pursuant to which it notified him that it was closing the file on his claim
after adopting the finding of the state or local fair employment agency that had investigated the
charge. The Notice informed Dzanku that he had a right to file a lawsuit alleging violation of
this ground. Therefore, for purposes of this Memorandum and Decision and Order, I will assume that Dzanku has
brought his claims against the proper party, i.e., the Postmaster General.
The Postmaster General has attached a copy of the EEO Dispute Resolution Specialist’s Inquiry Report
(“EEO Report”) to its memorandum in support of its motion to dismiss. The Postmaster General contends that in
deciding its motion to dismiss for failure to exhaust, the Court may consider matters filed outside of the pleadings
without converting such motion to one for summary judgment. I agree. More specifically, “[o]n a motion to dismiss,
the court may properly take into account four types of documents outside the complaint without converting the
motion into one for summary judgment: (1) documents of undisputed authenticity; (2) documents that are official
public records; (3) documents that are central to plaintiff's claim; and (4) documents that are sufficiently referred to
in the complaint.” Nolet v. Armstrong, 197 F. Supp. 3d 298, 308 n.8 (D. Mass. 2016). There can be no question that
the EEO Report is central to Dzanku’s employment discrimination claims and therefore, may be considered by the
Court on a motion to dismiss.
Title VII or the ADEA in federal or state court “WITHIN 90 DAYS of you receipt of this
notice; or your right to sue based on this charge will be lost.” Dzanku was not in the United
States when the notice was mailed to him; he returned to the United States on December 28,
2015 and did not see the Notice until January 2016.
Dzanku filed suit in this Court on February 22, 2016, naming the EEOC as defendant.
However, because the EEOC was not the proper party to this action, he was notified that his
action was subject to dismissal unless he amended his pleading to name the proper party (his
former employer). Dzanku filed his Amended Complaint on August 16, 2016. See supra, note 1.
Set forth below is the entirety of the averments contained in the Amended Complaint:
I am a resident of Worcester, Massachusetts.
The United States Postal Service is the Defendant.
I was not in the country when the attached Notice of Dismissal was mailed
to me by the U.S. Equal Employment Opportunity Commission. I am
appealing the dismissal of my discrimination case against The United
States Postal Service.
I did not return to the United States until December 28, 2015 and did not
see the Dismissal Notice until January 2016.
I have a valid claim of discrimination on the basis of my age and race for
my wrongful termination (see attached letter).3
Whether the Action should be dismissed for Failure to Exhaust Administrative Remedies
The Postmaster General contends that Dzanku’s claims are barred because he failed to
initiate contact with an EEO counselor within 45 days of the alleged discriminatory/personnel
Dzanku referenced the Notice and the termination letter in his original pleading and attached copies of
each thereto (the only difference between the original complaint and the Amended Complaint is the name of the
defendant). While the Amended Complaint states that the two documents are attached, Dzanku did not attach copies
of these documents to his Amended Complaint (he did attach a copy of the termination letter to the cover letter
accompanying the pleading). Because Dzanku did refer to these documents in the Amended Complaint, the Court
may consider their content in deciding the Postmaster General’s motion to dismiss. See note 2, supra.
action act as required by 29 C.F.R. §1614.105(a)(1)(federal employee must initiate contact with
EEO counselor within 45 days of date of alleged discrimination). Should EEO counseling efforts
fail, a federal employee then has 15 days after receipt of notice to file an administrative
complaint. See Id., at §1614.106(b). A federal employee’s failure to timely pursue his
administrative remedies may cause him to lose his right to seek de novo review in federal court.
However, while the exhaustion of administrative remedies requirement is a pre-requisite to filing
suit in federal court, it is not jurisdictional and, therefore, is subject to the equitable defenses of
waiver, estoppel and tolling. See MacDougall v. Potter, 421 F.Supp.2d 124, 128 (D.Mass. 2006).
Moreover, “a federal employer waives its affirmative defense of untimely exhaustion when it
fails to raise a challenge to timeliness until after a Final Agency Decision (“FAD”) on the merits
of a complaint.” Id. at 129. At the same time, because the exhaustion requirement is a condition
precedent to the United States’ waiver of its sovereign immunity, doctrines such waiver, estoppel
and tolling are to be applied sparingly and construed narrowly. See Vera v. McHugh, 622 F.3d
17, 30 (1st Cir. 2010). Additionally, it is the employee’s burden to prove that waiver, estoppel or
tolling is warranted. See Kwatowski v. Runyon, 917 F.Supp. 877 (D.Mass. 1996).
In this case, both parties have submitted copies of the Dismissal Notice pursuant to which
the EEOC notified Plaintiff that it was adopting the findings of the local EEO agency that had
investigated his charge and accordingly, was dismissing his case. However, neither party has
provided the Court with a copy of the local agency decision. For that reason, the Court cannot at
this time determine if the EEOC dismissed his claim on the grounds it was time barred, or
whether the EEOC denied the claim on the merits.4 Put another way, I cannot on this record
The Postmaster General has submitted the EEO Investigative Affidavit of Arthur A. Ledeux to establish
that EEO Notice No. 72, which advise postal employees of the time limits for pursuing an EEO complaint were
determine whether Plaintiff has an argument that the Postmaster General waived the affirmative
defense of failure to exhaust. Therefore, the Postmaster General’s motion to dismiss for failure to
exhaust administrative remedies is denied.
Whether The Complaint Should Be Dismissed For Insufficiency of Process
The Postmaster General also asserts that the Amended Complaint must be dismissed for
failure to effect timely service of process on the agency. The Amended Complaint was filed on
August 19, 2016. Pursuant to Fed.R.Civ.P. 4(m), if the complaint is not served on the defendant
within 90 days after it is filed, the court may dismiss the complaint without prejudice against the
defendant, or order that service be made within a specified period. However, if the plaintiff
establishes good cause for the failure to make timely service of process, “the court must extend
the time for service for an appropriate period.” Id. The Federal Rules of Civil Procedure provide
that service is made on the United States by delivering a copy of the summons and complaint to
the United States attorney for the district where the actions is brought. See Fed.R.Civ.P. 4(i).
However, to effect service on a United States agency (such as the Postal Service) or United
States officer/employee sued in his/her official capacity (such as the Postmaster General), a party
must serve the United States “and also send a copy of the summons and of the complaint by
registered or certified mail to the agency … officer, or employee .” Id.
posted in the facility where Dzanku worked and records establishing that Dzanku received EEOC training. These
documents are not referenced in the Amended Complaint, are not documents of undisputed authenticity, are not
matters about which the Court may take judicial notice, and are not documents that are central to Dzanku’s claims
and, therefore, cannot be considered by the Court without converting the motion to dismiss into one for summary
judgment. Since consideration of these documents will not resolve the issue of whether the Postmaster General
waived Dzanku’s failure to timely file his EEO complaint, I decline to treat the Postmaster General’s motion as one
for summary judgment and therefore, decline to consider them.
On September 9, 2016, the Court ordered the issuance of a summons to the Plaintiff; the
summons, United States Marshal Service forms and instructions for effecting service were
mailed to him that same date. See Docket No. 7. On November 10, 2016, Dzanku filed a return
receipt showing that the summons and complaint were served on the United States. See Docket
No. 9. On that same date, Dzanku filed a return receipt showing that he instructed the U.S.
Marshal Service to serve copies of the summons and complaint on the “U.S. Postal Service”. The
U.S. Marshal Service noted that service was not made because no address had been provided.
Dzanku’s receipt also shows that copies of the summons and complaint were served on the
United States Attorney General. See Docket No. 10.
In his opposition to the motion to dismiss, Dzanku states that he believes he did what this
Court instructed by delivering the copy of the summons and Amended Complaint to the U.S.
Marshal Service with instructions to serve the Postal Service. However, the receipt which was
returned to Dzanku clearly shows that the U.S. Marshal Service never served the pleading on the
U.S. Postal Service because he had failed to provide an address for the agency. Given that the
Court specifically directed Dzanku to the provisions of the Federal Rules of Civil Procedure
governing service of process on government agencies (specifically, Fed.R.Civ.P. 4(i)), I do not
find that he has established “good cause” for the failure to serve the Postal Service. Moreover,
since, for the reasons set forth below, I find that the Amended Complaint fails to state a claim, it
would be futile to grant Dzanku an extension of the time for completing service. Accordingly,
the Postmaster General’s motion to dismiss for insufficiency of service is granted.
Whether The Amended Complaint Should Be Dismissed For Failure to State a Claim
The Postmaster Gemeral asserts that the Amended Complaint contains only “skeletal
allegations” and should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6). Dzanku asserts that under the Federal Rules of Civil Procedure he is entitled to notice
pleading and therefore, his allegations are adequate.
Standard of Review
On a Rule 12(b)(6) motion to dismiss, the Court “must assume the truth of all wellplead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175
F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that
is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007).
That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level
... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Id. at 555 (internal citations omitted). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if plaintiff’s well-pleaded facts do not “possess enough heft to show that
plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008)
(internal quotations and original alterations omitted). “The relevant inquiry focuses on the
reasonableness of the inference of liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint.” Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir.
Does the Amended Complaint Comply With Iqbal Twombly
Plaintiff’s Amended Complaint consists of five sentences, and the only substantive
allegation is the following conclusory statement: “I have a valid claim of discrimination on the
basis of my age and race for my wrongful termination (see attached letter).” As noted previously,
see note 3, supra, the letter was not attached to the Amended Complaint, but assuming it’s the
letter referred to in the original pleading, the letter simply notifies Dzanku that he has been
terminated. Although Dzanku asserts a claim for race and age discrimination, his pleading does
not state his age or identify his race, give any details surrounding the circumstances of his
termination, or allege any other facts which would support a finding that he was terminated on
the bases of his age and/or race. Such bare bones, conclusory allegations, which would not have
met the standard for notice pleading pre-Iqbal/Twombly, fall far short of stating a claim that is
plausible on its face. Accordingly, the Postal Service’s motion to dismiss for failure to state a
claim is granted.
Defendant’s Motion To Dismiss, Or, In The Alternative, For Summary Judgment (Docket
No. 12) is granted.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
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