Nixon v. United States Postal Service et al

Filing 11

REPORT AND RECOMMENDATIONS re 7 MOTION to Dismiss Motion for Partial Dismissal filed by United States Postal Service: that defendants' motion for partial dismissal be GRANTED; and all claims against defendants United States Postal Service and its employee Jody Edwards be DISMISSED. Clerk to add Postmaster General Patrick Donahoe as proper defendant. Objections to R&R due by 4/5/2012. Signed by Magistrate Judge Stephanie K. Bowman on 3/19/12. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOYCE ANN NIXON,

Case No. 1:11-cv-784

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

UNITED STATES POSTAL SERVICE., et al.,
Defendants.
REPORT AND RECOMMENDATION
On November 4, 2011, Plaintiff initiated this employment discrimination case. On
January 25, 2012, Defendants filed a motion for partial dismissal, and for substitution of
the United States Postmaster General as the sole Defendant. Defendants argue that the
Postmaster General is the only proper Defendant, as the head of Plaintiff’s prior employing
agency, the United States Postal Service. (Doc. 7).
S.D. Ohio Civ. R. 7.2(a)(2) provides that a memorandum in opposition “shall be
served and filed within twenty-one (21) days from the date of service set forth in the
certificate of service attached to the Motion.” When Plaintiff filed no timely response, the
Court directed her to “SHOW CAUSE, in writing on or before March 16, 2012, why the
Defendants’ motion for partial dismissal and for substitution of the Defendant (Doc.7)
should not be construed as unopposed and granted for the reasons stated.” (Doc. 8).
Plaintiff, who proceeds pro se, filed a response to the Court’s order in which she alleges
that she was discriminated against by Postmaster Jody Evans “who was Officer In Charge
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at date of dismissal.” (Doc. 10).

Plaintiff also states that she has witnesses who are

willing to testify on her behalf.
Plaintiff’s response does not refute the merits of Defendant’s motion. Defendant
does not seek to dismiss Plaintiff’s claims in their entirety, but only to substitute the proper
Defendant for two improperly named Defendants.
Specifically, the complaint should be dismissed under Rule 12(b)(1) of the Federal
Rules of Civil Procedure to the extent that Plaintiff seeks relief against the employing
agency itself, the United States Postal Service. Jody Edwards also must be dismissed,
because the only properly named Defendant is the head of the United States Postal
Service, or Postmaster Patrick Donahoe. See e.g., 42 U.S.C. §2000e-16(c)(the defendant
in an employment discrimination action filed against the federal government is “the head
of the department, agency or unit, as appropriate.”). In addition, Plaintiff’s claims against
Defendant Edwards are subject to dismissal pursuant to Rule 12(b)(6) because individuals
such as Ms. Edwards cannot be held liable for discrimination under Title VII. See Wathen
v. General Electric Co., 115 F.3d 400, 405 (6th Cir. 1997).
Therefore, IT IS RECOMMENDED THAT Defendants’ motion for partial dismissal
(Doc. 7) be GRANTED, and that all claims against Defendants United States Postal
Service and its employee, Jody Edwards be DISMISSED, with the Postmaster General,
Patrick Donahoe to be substituted as the proper Defendant in this case.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOYCE ANN NIXON,

Case No. 1:11-cv-784

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

UNITED STATES POSTAL SERVICE., et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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