Kersey v. Widnall ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1597



                        GEORGE E. KERSEY,



                      Plaintiff, Appellant,



                                v.



                 UNITED STATES AIR FORCE, ET AL.,



                      Defendants, Appellees.

                       ____________________



Nos. 98-1598

     98-1599



                        GEORGE E. KERSEY,



                      Plaintiff, Appellant,



                                v.



                    SHEILA E. WIDNALL, ET AL.,



                      Defendants, Appellees









          APPEALS FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. George A. O'Toole, Jr., U.S. District Judge]







                              Before



                     Selya, Stahl and Lynch,

                        Circuit Judges.









     George E. Kersey on brief pro se.

     Donald K. Stern, United States Attorney and Michael J.

Pineault, Assistant U.S. Attorney on brief for appellees.













December 10, 1998

















































































              Per Curiam.  We have carefully reviewed the record in

    this case, including the briefs of the parties and the

    memorandum and order of the district court.  We affirm the

    grant of summary judgment to defendants/appellees essentially

    for the reasons given by the district court in its memorandum

    and order, dated March 12, 1998. We add only the following

    brief comments.

              Even if we assume arguendo that defendants/appellees

    served their motion to dismiss one day late, Kersey has not

    alleged any prejudice from the delay.  Thus, the district court

    was well within its discretion in considering the motion.  SeeCoughlin v. Tailhook Ass'n Inc., 818 F. Supp. 1366, 1368 (D.

    Nev. 1993) (court will consider motion to dismiss since filing

    one day late did not prejudice plaintiff).

              We find no error in the decision by the EEOC to

    dismiss Kersey's complaint without having informed him

    beforehand of its reliance on the doctrine of constructive

    receipt.  Moreover, since the Notice of Final Interview was

    delivered to the address Kersey provided and was received by an

    individual of suitable age and discretion, Kersey has not

    raised any issue which might rebut the presumption of

    constructive receipt.  Consequently, he suffered no prejudice

    from any failure by the agency to inform him of its reliance on

    the doctrine prior to his final appeal.

              Finally, Kersey has not alleged any facts which show

    that the actions which form the basis of his complaint were

    performed by his supervisors outside of the scope of their

    employment.  Hence, no cause of action exists against them in

    their individual capacities.

              Affirmed.  See 1st Cir. Loc. R. 27.1.