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Dennis v. Donohoe

United States District Court, N.D. Indiana, Fort Wayne Division

February 12, 2015

PATRICK R. DONOHOE, Postmaster General of the United States, and UNITED STATES POSTAL SERVICE, Defendants.



The Plaintiff, Carolyn S. Dennis, sued the Postmaster General and the United States Postal Service under Title VII of the Civil Rights Act of 1964. This matter is before the Court on the Government's Motion to Dismiss for Lack of Jurisdiction [ECF No. 7]. For the following reasons, the Motion is denied.


On August 18, 2013, the Plaintiff filed an Equal Employment Opportunity (EEO) Complaint against the Postal Service [ECF No. 3 at 5], alleging employment discrimination on the basis of race, color, and sex, and charging retaliation. On February 12, 2014, the Postal Service issued a Final Agency Decision [ECF No. 3 at 14] denying her claims. The Final Agency Decision provided notice to the Plaintiff of her right to file a civil action in United States District Court within 90 days. On May 8, 2014, the Plaintiff filed this civil action in the Allen Superior Court, Allen County, Indiana [ECF No. 3], and tendered summonses for the Postmaster General and the Postal Service.[1] On August 14, 2014, the Government removed the case to this Court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446(b) [ECF No. 1]. The record reflects that the Plaintiff did not tender summonses to either the United States Attorney or the United States Attorney General prior to the case's removal on August 14, 2014; although the Plaintiff did tender an alias summons to the United States Attorney on August 28, 2014 [ECF No. 10].

On August 19, 2014, the Government filed a Motion to Dismiss for Lack of Jurisdiction [ECF No. 7] and a Memorandum in Support of the Motion to Dismiss [ECF No. 8] pursuant to Federal Rule of Civil Procedure 12(b)(1). The Plaintiff filed a Response [ECF No. 9] on September 4, 2014, and the Government filed a Reply [ECF No. 13] on September 16, 2014.[2]


In the Government's Motion to Dismiss, it asserts that this Court lacks subject matter jurisdiction over the Plaintiff's civil action because, prior to removal to federal court, the Plaintiff failed to properly file suit in state court within the statute of limitations for Title VII actions against a federal employer. The Government specifically relies on the doctrine of derivative jurisdiction. The Plaintiff contends, in part, that the doctrine of derivative jurisdiction is inapplicable here; and accordingly, 28 U.S.C. § 1448 and Federal Rule of Civil Procedure 4(m) allow the Plaintiff up to 120 days from the date of removal to perfect service.

A. Subject Matter Jurisdiction

Indeed, "[n]o court may decide a case without subject-matter jurisdiction, and neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction." United States v. Cnty. of Cook, Ill., 167 F.3d 381, 387 (7th Cir. 1999). Federal jurisdiction "upon removal, pursuant to 28 U.S.C. § 1442, is essentially derivative of that of the state court." Edwards v. U.S. Dep't of Justice, 43 F.3d 312, 316 (7th Cir. 1994) (quoting Arizona v. Manypenny, 451 U.S. 232, 242 n.17 (1981). Under the derivative jurisdiction doctrine, "[w]here the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none." Id. (quoting Minnesota v. United States, 305 U.S. 382, 389 (1939)). "Therefore, the state court must initially have jurisdiction to review the agency's decision for the district court to similarly acquire such authority on removal." Id. at 315.

Here, the Plaintiff filed in state court a civil action under Title VII, which is the exclusive remedy for discrimination suits by federal employees against federal agencies. 42 U.S.C. § 2000e-16(c). Because the Plaintiff's suit is against the United States Postal Service it is also governed by 39 U.S.C. § 409, which grants concurrent jurisdiction to state courts "over all actions brought by or against the Postal Service." 39 U.S.C. § 409(a) ("[T]he United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service."); see also Powers v. U.S. Postal Serv., 671 F.2d 1041, 1042 (7th Cir. 1982) (§ 409(a) "gives the federal courts, concurrently with the state courts jurisdiction over suits by or against the Postal Service.").[3]

Therefore, the Court may adjudicate this case, unless subject matter jurisdiction is lacking due to the Plaintiff's failure to properly file suit within Title VII's statute of limitations. § 2000e-16(c).

1. Title VII Statute of Limitations

Under § 2000(e)-16(c), a civil action must be commenced within 90 days of receipt of a final agency decision. Id. The record shows that the Plaintiff received a Final Agency Decision on February 12, 2014, and was granted 90 days-up to, and including May 13, 2014-to file a civil action. The Plaintiff filed a Complaint in state court on May 8, 2014, a date within the 90-day filing deadline. However, at the time of filing, the Plaintiff served the Postmaster General and the United States Postal Service, but did not serve either the United States Attorney nor the United States Attorney General, as required by Federal Rule of Civil Procedure 4(i).[4] In Indiana, a civil action is not timely commenced if the plaintiff files a complaint within the applicable statute of limitations but does not tender the "necessary" summonses to the clerk within the statutory period. Ray-Hayes v. Heinamann, 760 N.E.2d 172, 174 (Ind. 2002), rev'd on other grounds, Ray-Hayes v. Heinamann, 768 N.E.2d 899 (Ind. 2002); Ind. R. of Ct. 3. Thus, the Plaintiff's failure to serve the necessary summonses triggered a violation of the statute of limitations.

Title VII's statute of limitations is a condition to the waiver of sovereign immunity-and generally, such "conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957). However, in Irwin v. Department of Veterans Affairs, the Supreme Court held that the statutes of limitation in Title VII suits against the United States or one of its agencies are subject to the equitable remedies of estoppel and tolling. 498 U.S. 89, 95-96 (1990). According to the Court, "[s]uch a principle is... a realistic assessment of [the] legislative intent [of Title VII] as well as a practically useful principle of interpretation." Id. at 95. As the Seventh Circuit noted, Irwin ' s holding "is incompatible with a jurisdictional' characterization of a statute of limitations." Wis. Valley Improvement Co. v. United States, 569 F.3d 331, 333 (7th Cir. 2009) ("After Irwin ... it is hard to understand how a jurisdictional' tag may be attached to any period of limitations, whether or not the United States is a party"); see also Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991) ("Necessary to [ Irwin ' s ] expressed holding is an implied holding that strict ...

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