Gatson v. Donahoe

Filing 12

DECISION AND ORDER granting in part and denying in part 7 Motion to Dismiss. Defendant's motion to dismiss [#7] is granted in part and denied in part. The Fourth Cause of Action is dismissed with prejudice, but the application is otherwise d enied. Within ten (10) days of the date of this Decision and Order, Plaintiff shall complete service on Defendant by sending a copy of the Summons and Complaint, by certified or registered mail, to both the Attorney General and the EEOC, and file pr oof of service with the Court. In the event that Plaintiff fails to do so, Defendant shall notify the Court in writing. The Clerk of the Court is directed to substitute Megan J. Brennan, Postmaster General, United States Postal Service, in place of Patrick Donahoe, and to terminate Donahoe as a party. Signed by Hon. Charles J. Siragusa on 3/31/17. Copy of this decision and order and the NEF mailed to pro se plaintiff at 6 Flora Street, Rochester, NY 14608-2727 (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
GWENDOLYN GATSON,
Plaintiff
DECISION AND ORDER
-vs15-CV-6220 CJS
PATRICK R. DONAHOE, Postmaster General,
United States Postal Service, (Northeast Area)
Agency,
Defendants
__________________________________________
INTRODUCTION
Plaintiff, a former employee of the United States Postal Service, commenced this
action alleging employment discrimination, retaliation and due process violations. Now
before the Court is Defendant’s motion to dismiss for improper service and failure to state
a claim. The application is granted in part and denied in part.
BACKGROUND
On January 13, 2007, the United States Postal Service terminated Plaintiff’s
employment. Plaintiff thereafter filed an employment discrimination complaint with the
United States Equal Employment Opportunity Commission Office of Federal Operations
(“EEOC”), alleging that she was terminated because of her race (African American), sex
(female) and disability (injuries to knee, neck and back), and in retaliation for a prior
discrimination complaint. The EEOC denied Plaintiff’s complaint, and on May 20, 2014,
Plaintiff filed a motion for reconsideration. On January 15, 2015, the EEOC denied
Plaintiff’s motion for reconsideration.
On April 16, 2015, Plaintiff commenced this action, proceeding pro se. Plaintiff’s

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Complaint (Docket No. [#1]) purports to state four causes of action: 1) termination due to
discrimination; 2) termination based upon wrong standard of law; 3) retaliation; and 4)
denial of due process by the EEOC. As to the fourth cause of action, the Complaint
contends that the EEOC denied Plaintiff “due process of law” when it denied her motion
for reconsideration, because it prevented her from submitting a reply to the Postal
Service’s opposition to the motion for reconsideration. The Complaint [#1] indicates that
Plaintiff wanted to file such a reply because the Postal Service’s response “quoted law that
did not exist and totally misrepresented the facts.”1
Along with the Complaint, Plaintiff submitted a motion for leave to proceed in forma
pauperis, which the Court denied. Thereafter, on June 16, 2015, Plaintiff paid the filing fee.
According to the Court’s docket sheet, it was not until December 7, 2015, that the Court
issued a summons and mailed it to Plaintiff. Approximately six months later, the Court
determined that there had been no docket activity since December 7, 2015. On May 31,
2016, the Court issued an Order to Show Cause [#4], as to why the action should not be
dismissed for failure to prosecute. On June 14, 2016, Plaintiff responded to the Order to
Show Cause, and indicated that she had never received the summons mailed by the Court.
On June 23, 2016, the Court accepted Plaintiff’s explanation and directed the Clerk of the
Court to reissue a summons to Plaintiff.
On June 24, 2016, the Clerk of the Court mailed a new summons to Plaintiff. Less
than ninety days thereafter, on September 19, 2016, Plaintiff filed a proof of service,
indicating that she had served Defendant. However, the affidavit [#8] that Plaintiff filed

1

Complaint [#1] at p. 6.
2

indicated only that on September 19, 2016, her process server the summons to the office
of the United States Attorney in Rochester.
On September 15, 2016, Defendant filed the subject motion [#7] to dismiss the
Complaint in its entirety for improper service, pursuant to Federal Rule of Civil Procedure
(“Fed.R.Civ.P.”) 4(i), 4(m) and 12(b)(5), or, in the alternative, to dismiss the fourth cause
of action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Defendant further
contends that the proper defendant in this action is the current Postmaster General, Megan
J. Brennan (“Brennan”).
On October 6, 2016, Plaintiff filed a response [#9], opposing Defendant’s motion to
dismiss in its entirety, though not opposing Defendant’s request to substitute Brennan as
the proper defendant. In opposing Defendant’s motion to dismiss for improper service,
Plaintiff re-submitted the aforementioned affidavit of service, along with a postal receipt,
purporting to show that, on September 19, 2016, she had also mailed a copy of the
summons and complaint to the Postmaster General in Washington, D.C., by certified mail.
DISCUSSION
Motion to Dismiss for Untimely and Improper Service
Defendant maintains that the Complaint should be dismissed for “insufficient service
of process,” pursuant to Fed.R.Civ.P. 12(b)(5). “On a Rule 12(b)(5) motion to dismiss, the
plaintiff bears the burden of establishing that service was sufficient.” Khan v. Khan, No.
07–3709–cv, 360 F. App'x 202, 203 (2d Cir. Jan. 12, 2010). “[I]n considering a motion to
dismiss pursuant to 12(b)(5) for insufficiency of process, a Court must look to matters
outside the complaint to determine whether it has jurisdiction.” Darden v. DaimlerChrysler
N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).
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Defendant contends that service was untimely, because it was not completed within
ninety days after the complaint was filed, as required by Fed.R.Civ.P. 4(m). Defendant
correctly points out that Plaintiff did not attempt to serve the summons until nine months
after the Court first issued the summons. However, Defendant ignores the fact that in the
interim, the Court issued the Order to Show Cause, Plaintiff responded, and the Court
directed the Clerk to issue a new summons. See, Order [#6]. By issuing that Order, the
Court accepted Plaintiff’s explanation that she had never received the first summons that
was mailed to her in December 2015. Accordingly, the Court does not hold Plaintiff
responsible for the delay between December 7, 2015, when the summons was first issued,
and June 24, 2016, when the summons was re-issued. Consequently, since Defendant’s
motion under Rule 4(m) is based on that period of delay, the Court will deny that aspect
of the motion.
Alternatively, Defendant contends that Plaintiff failed to make proper service under
Fed.R.Civ.P. 4(i), which governs service on the United States and its agencies,
corporations, officers or employees. Plaintiff is suing the Postmaster General in his official
capacity, and was therefore required to make service in accordance with Rule 4(i)(2).
Under that rule, the plaintiff must first serve the United States, and then must “also send
a copy of the summons and . . . complaint by registered or certified mail to the agency,
corporation, officer or employee.” Fed.R.Civ.P. 4(i)(2). As for serving the United States,
a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United
States attorney for the district where the action is brought--or to an assistant
United States attorney or clerical employee whom the United States attorney
designates in a writing filed with the court clerk--or
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(ii) send a copy of each by registered or certified mail to the civil-process clerk at
the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the
United States, send a copy of each by registered or certified mail to the
agency or officer.
Fed. R. Civ. P. 4(i)(1). Accordingly, pursuant to this rule, Plaintiff was required to do the
following: 1) send a copy of the summons and complaint by registered or certified mail to
the Postmaster General; 2) deliver, or send, by registered or certified mail, a copy of the
summons and complaint to the United States Attorney for the Western District of New
York; and 3) send a copy of the summons and complaint by registered or certified mail to
the Attorney General of the United States at Washington, D.C.. Additionally, because the
Complaint also challenges the determination of the EEOC, Plaintiff was required to send
a copy of the summons and complaint to the EEOC, by registered or certified mail.
Defendant contends that Plaintiff failed to comply with these requirements, stating
that, “on or about July 18, 2016 . . . Plaintiff sent a copy of the Complaint via regular, firstclass mail to the Agency’s Northeast Area Law Office located in Windsor, Connecticut.
Plaintiff sent the Complaint to the United States Attorney’s Office on the same date, July
18, 2016.”2 Defendant does not indicate whether the mailing to the U.S. Attorney was by
regular mail. Moreover, these dates are confusing, since Plaintiff claims that she served
Defendant in September 2016, not July.

2

Memo of Law [#7-1] at p. 3.
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In any event, Plaintiff responds by claiming that she properly served Defendant on
September 19, 2016, by doing just two things: 1) hand delivering a copy of the summons
and complaint to the U.S. Attorney’s office in Rochester; and 2) mailing, by certified mail,
a copy of the summons and complaint to the Postmaster General in Washington, D.C..3
Defendant did not submit a reply, and consequently the Court assumes that Defendant
does not challenge Plaintiff’s contention that she took those two actions on September 19,
2016.
Nonetheless, by Plaintiff’s own admission she did not properly serve the Defendant,
since she did not send copies of the summons and complaint, by registered or certified
mail, to the Attorney General or the EEOC. Nor has Plaintiff offered any good cause for
such failure, since she apparently does not understand that her attempt at service was
deficient. The Court could therefore dismiss the action for improper service. However,
a district court has wide latitude in deciding when to grant extensions [of time
to cure deficiencies in service, even] absent good cause. See Zapata v. City
of New York, 502 F.3d 192, 195–96 (2d Cir.2007). Factors relevant to the
exercise of this discretion include, inter alia, the relative prejudice to the
parties (including whether the action would be barred by the statute of
limitations and whether defendant had actual notice of the suit) and whether
there is a “justifiable excuse” for the failure properly to serve.
Mares v. United States, No. 14–2396–cv, 627 F. App'x 21, 23 (2d Cir. Oct. 5, 2015). The
Court has considered the relevant factors and finds that an extension of time is appropriate
here. In that regard, the Court has considered that if the action is dismissed, Plaintiff may
be barred by the statute of limitations from re-filing the action. Additionally, it appears that
the pro se Plaintiff attempted to comply with Rule 4(i), but did not comprehend all of its
3

Pl. Response [#9] at pp. 3-4.
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requirements.4 On the other hand, Defendant had actual notice of the action and has not
claimed any prejudice. Accordingly, the Court will deny Defendant’s motion under Rule
12(b)(5), and will grant Plaintiff an additional ten (10) days to complete service, by serving
both the Attorney General and the EEOC.
Motion to Dismiss for Failure to State a Claim
Defendant also moves to dismiss the fourth cause of action for failure to state a
claim. The legal principles applicable to such a motion are clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order
to give the defendant fair notice of what the claim is and the grounds upon
which it rests. While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual 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).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007 ) (“To survive dismissal, the plaintiff must provide the grounds upon which his
claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this standard, a district court must accept the allegations contained
in the complaint as true and draw all reasonable inferences in favor of the nonmoving
party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. denied, 531 U.S. 1052,

4

See, Pl. Memo of Lwa [#9] at p. 3.
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121 S.Ct. 657 (2000). In addition to the complaint, “[t]he Court may also consider any
written instrument attached to the complaint, statements or documents incorporated into
the complaint by reference . . . and documents possessed by or known to the plaintiff upon
which it relied in bringing the suit.” Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016)
(citation and internal quotation marks omitted).
Defendant contends that the fourth cause of action fails to state an actionable claim,
because it is directed at the EEOC, which is not a party to this action. In that regard, the
fourth cause of action clearly alleges that the “Administrative Court,” referring to the EEOC,
“denied Plaintiff due process when [it] denied Plaintiff the right to respond to Defendant’s
opposition to Plaintiff’s request for reconsideration.”5 The Complaint reiterates this point
a few sentences later, stating:
The federal basis for this claim is: The Administrative Court denied Plaintiff
due process of law when that court would not consider Plaintiff’s response
to Defendant’s opposition to Plaintiff’s request for reconsideration.6
Defendant is therefore correct in asserting that the fourth cause of action is directed at the
EEOC, which is not a party. Plaintiff suggests that she may try to add the EEOC as a
party, “should [the] Court determine that [the EEOC] denied Plaintiff due process of law.”7
However, any such attempt at amendment would be futile, since Plaintiff had no
constitutional right to submit a reply to her motion for reconsideration. Rather, as the
EEOC explained when it denied Plaintiff’s motion for reconsideration, the regulation

5

Complaint [#1] at p. 6.

6

Complaint [#1] at p. 6.

7

Pl. Response [#9] at p. 5.
8

permitting motions for reconsideration, 29 C.F.R. § 1614.405(c), does not provide for
submission of replies.8 Accordingly, the Fourth Cause of Action fails to state any potential
claim against the EEOC.
The fourth cause of action also fails to state a claim against Defendant. In that
regard, the only reference to Defendant in the fourth cause of action is the following
statement: “Moreover, to add insult to injury, the Defendant’s opposition quoted law that
did not exist and totally misrepresented the facts.”9 In opposing Defendant’s motion,
Plaintiff further insists that, “[i]t was the Defendant by misrepresenting the law that denied
[her] due process of law.”10 However, even assuming that Defendant misstated the law
and/or facts before the EEOC, such assertion fails to state a claim of constitutional
significance, and must be dismissed. Plaintiff has not requested leave to amend this claim
as against Defendant, but such application would be denied in any event, since better
pleading would not cure the claim’s inherent lack of merit. Accordingly, the Fourth Cause
of Action is dismissed with prejudice.
CONCLUSION
Defendant’s motion to dismiss [#7] is granted in part and denied in part. The Fourth
Cause of Action is dismissed with prejudice, but the application is otherwise denied. Within
ten (10) days of the date of this Decision and Order, Plaintiff shall complete service on
Defendant by sending a copy of the Summons and Complaint, by certified or registered

8

See, EEOC decision dated January 15, 2015, Def. Motion to Dismiss [#7], Ex. 8 at p. 2,

n. 1.
9

Complaint [#1] at p. 6.

10

Pl. Memo of Law [#9] at p. 5.
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mail, to both the Attorney General and the EEOC, and file proof of service with the Court.
In the event that Plaintiff fails to do so, Defendant shall notify the Court in writing. The Clerk
of the Court is directed to substitute Megan J. Brennan, Postmaster General, United States
Postal Service, in place of Patrick Donahoe, and to terminate Donahoe as a party.
SO ORDERED.
Dated:

Rochester, New York
March 31, 2017
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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