Discenza v. Hill

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-6-2007
Discenza v. Hill
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4109
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Discenza v. Hill" (2007). 2007 Decisions. Paper 1524.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1524
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4109
________________
CHARLES DISCENZA,
Appellant
v.
THOMAS HILL, Head of the Contract Department;
BARBARA PETRZILKA, Plaintiff’s Supervisor;
DONALD C. WINTER
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-05998)
District Judge: Honorable Anne E. Thompson
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
February 23, 2007
Before: SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES
(Filed: March 6, 2007 )
_______________________
OPINION
_______________________
PER CURIAM
Charles Discenza, acting pro se, appeals an order of the United States
District Court for the District of New Jersey dismissing his complaint and denying his
motion to file an amended complaint.
Discenza, a former employee of the Department of the Navy, alleges that he
was denied promotions in 1999 and 2001 because of his race, sex, and failure to account
properly for his status as a disabled veteran. Based on these events, Discenza brought
claims under Title VII, 42 U.S.C. 2000e, and the Vietnam Era Veterans’ Readjustment
Assistance Act (“VEVRAA”), 38 U.S.C. § 4214. His initial complaint, submitted to the
District Court with his application to proceed in forma pauperis on December 9, 2004,
named only defendants Hill and Petrzilka, two supervisors in his department. On July 18,
2005, the District Court granted his motion to proceed in forma pauperis, ordered that the
complaint be filed, and instructed Discenza that he must submit a separate request for
appointment of counsel, if he so desired.1 On August 4, 2005, Discenza filed a motion for
appointment of counsel, which was denied by the District Court on November 10, 2005.
On February 9, 2006, he filed an amended complaint adding Donald Winter, Secretary of
the Navy, as a defendant. Following a request by Discenza, summons issued on March 2.
Although there is no record of service of the amended complaint being made, defendants
moved to dismiss the complaint, or in the alternative for summary judgment, on March 3,
2006.
1
For reasons that are not clear, the District Court did not at that time order summons
to issue or direct the United States marshals to make service pursuant to 28 U.S.C. §
1915(d) and Fed. R. Civ. P. 4(c)(2).
2
The District Court dismissed the claims against Hill and Petrzilka for lack
of jurisdiction, reasoning that Title VII does not allow suits against government workers
in their individual capacities. It construed the amended complaint submitted by Discenza
as a motion to amend the complaint, and denied it as futile. The District Court found that
the amended complaint was not filed within 90 days of receipt of the Equal Employment
Opportunity Commission (“EEOC”) “right to sue” letter as required by 42 U.S.C. 2000e-
16(c), and that it did not meet the standard for relating back to the initial complaint under
Fed. R. Civ. P. 15(c).
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We undertake
plenary review of the District Court’s grant of the motion to dismiss as to Hill and
Petrzilka. See AT&T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 529 (3d Cir. 2006).
We review the denial of Discenza’s motion to amend the complaint de novo, as the
District Court based this holding on the conclusion that the proposed amended complaint
would not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Howard Hess
Dental Labs Inc. v. Dentsply Int’l, Inc., 424 F.3d 363, 369 (3d Cir. 2005).
As the District Court correctly concluded, individual employees may not be
held liable under Title VII. See Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d
1061, 1077-78 (3d Cir. 1996). While this did not deprive the District Court of
jurisdiction, it did provide an adequate foundation for the grant of a motion to dismiss for
failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
3
Discenza’s claims under VEVRAA also fail because the government has not waived
sovereign immunity. See Antol v. Perry, 82 F.3d 1291 (3d Cir. 1996).
We will also affirm the denial of Discenza’s motion to amend his
complaint, although on different grounds than those relied on by the District Court.
While the amended complaint may have met the requirements for relating back under
Fed. R. Civ. P. 15(c),2 it would have been futile nonetheless because Discenza failed to
exhaust administrative remedies before filing his complaint in District Court. As we
observed in Robinson v. Dalton, “[i]t is a basic tenet of administrative law that a plaintiff
must exhaust all required administrative remedies before bringing a claim for judicial
relief.” 107 F.3d 1018, 1020 (3d Cir. 1997). Here, Discenza admits that he did not
consult with an Equal Employment Office (“EEO”) counselor within 45 days of
becoming aware of the allegedly discriminatory personnel action as required under 29
C.F.R. § 1614.105(a). According to his court filings, he was under the misapprehension
that evidence sufficient to establish a prima facie case of discrimination was required
before consulting with an EEO counselor. As this mistake is insufficient to justify
equitable tolling, Discenza’s claims against defendant Winter would have been subject to
dismissal under Fed. R. Civ. P. 12(b)(6), see id. at 1022, making his attempt to amend the
complaint futile.
2
The 120-day period for service set by Fed. R. Civ. P. 4(m) likely should have been
equitably tolled during the pendency of Discenza’s motion for appointment of counsel.
See Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 459-60; Baldwin County
Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984).
4
Accordingly, we will affirm the order of the District Court.
5