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Daly v. United States Department of Army and United States Department of Army

argued: October 17, 1988.

MARY C. DALY, APPELLANT
v.
UNITED STATES DEPARTMENT OF THE ARMY AND UNITED STATES DEPARTMENT OF THE ARMY, ENVIRONMENTAL AND ENERGY CONTROL BRANCH, AND FRANK CARLUCCI, SECRETARY OF DEFENSE



Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 87-1559.

Sloviter and Hutchinson, Circuit Judges and Debevoise, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

Plaintiff Mary C. Daly filed this action under section 717 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982). The district court dismissed Daly's amended complaint, holding that Daly had failed to name the proper party. The court also denied Daly's motion to amend to name the Secretary of the Army, whom the court deemed the proper party, on the ground that such an amendment would not relate back and hence would be untimely. Our review of a dismissal of the complaint is plenary.

I.

Daly, who is employed by the United States Department of the Army at the Tobyhanna Army Depot, Environmental and Energy Control Branch, filed two formal EEO Complaints with her employer. The first, filed on November 14, 1986, alleged that she had been the victim of gender-based discrimination. The second, filed on March 12, 1987, alleged retaliation against her for filing the first complaint. On October 8, 1987, the Department of the Army issued, and Daly received, the final decision on her retaliation claim. Although the record does not show the date on which the final decision on Daly's gender-based discrimination claim was issued, the parties agree it was issued on November 20, 1987 and received by Daly on December 10, 1987.

On November 6, 1987, Daly filed this Title VII action in the United States District Court for the Middle District of Pennsylvania against the United States Department of the Army and the Department's Environmental and Energy Control Branch, alleging both sex discrimination and reprisal. On November 19, 1987, Daly served the United States Attorney for the Middle District of Pennsylvania and the United States Attorney General by mail. On December 7, 1987, Daly filed an amended complaint, adding "Frank Carlucci, Secretary of Defense" as a defendant.

Defendants filed a motion to dismiss the amended complaint alleging that the appellant had failed to name the proper defendant. The district court agreed and dismissed the complaint on the ground that the only proper defendant in the action was the Secretary of the Army, who was not timely sued.

II.

On appeal, Daly contends first that the district court erred in holding that the Secretary of the Army is the only proper defendant in a Title VII action brought by a civilian employed by the Department of the Army. The statute provides that in a civil action for sex discrimination, "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16(c). Daly argues that it was sufficient for her to name the Secretary of Defense because the Department of the Army is a component of the Department of Defense. On the other hand, the government argues that because Congress has specified that, "[t]he Secretary [of the Army] is the head of the Department of the Army," 10 U.S.C.A. § 3013 (a)(1) (Supp. 1988), it is that individual who must be named as the defendant in a suit alleging that the Army has illegally discriminated.

Daly relies on the statement in our opinion in Williams v. Army and Air Force Exchange Service, 830 F.2d 27, 29 (3d Cir. 1987), that "[i]t is undisputed that the correct defendant in this action is not AAFES but the head of the Defense Department (the Secretary of Defense) or the head of AAFES" (emphasis added). However, the issue of which of the two was the appropriate defendant was not decided by the court because neither had been served. Moreover, the plaintiff in Williams was employed by AAFES, which appears to be a joint venture program between two services, and not by the Department of the Army, as here. In any event, in the posture of this case, we need not decide whether suit against the Secretary of Defense is a suit against "the head of the department" when the claim is against the Army.

III.

The limitations period in this case is governed by 42 U.S.C. § 2000e-16(c), which requires a complainant to file a civil action within thirty days of receipt of the notice of final action taken by the Agency. Daly received notice of the final action on her retaliation claim on October 8, 1987, and filed her complaint raising both the retaliation and the ...


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