Opinion
TH 02-154-CT/H
December 24, 2003
ENTRY ON DEFENDANT'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff, Randy J. Berg, has brought action against the Defendant, Roselawn Funeral Home Memorial Park ("Roselawn"), under Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 (a). Mr. Berg alleges that Roselawn failed to make reasonable accommodations and constructively discharged him from his job because of his disability. This matter comes before the court on the Defendant's Motion to Dismiss for Insufficiency of Service of Process and the Defendant's Motion for Summary Judgment on the grounds that the allegations in the Complaint are outside the scope of the EEOC charge. The court decides the motions as follows:
I. Background
Mr. Berg was hired to work at Roselawn by sales manager, Gary Thomas, on July 11, 2001 for the position of Pre-Arrangement Counselor. (Compl. ¶ 6.) On March 6, 1987, Mr. Berg became completely blind as the result of a motorcycle collision. ( Id. ¶ 7.) Mr. Berg alleges that his loss of vision is a disability which substantially impairs him in several major life activities. ( Id. ¶ 8.) He also states that he is a qualified individual with a disability and is capable of performing all essential functions required of the position for which he was hired at Roselawn with reasonable accommodation. ( Id. ¶ 9.) Mr. Berg alleges that on or about September 4, 2001, he was "constructively terminated" from his position at Roselawn because Roselawn and members of its management personnel actively frustrated and delayed the installation and implementation of a reasonable accommodation for Mr. Berg's disability. ( Id. ¶ 10.)
On August 29, 2001, the Plaintiff filed a charge against his employer with the EEOC, alleging disability discrimination. In Mr. Berg's EEOC charge, he checked the box labeled disability to identify the type of discrimination alleged. Mr. Berg also relayed the following description of discrimination:
I am a qualified individual with a disability. I was hired by Roselawn Memorial Park on July 16, 2001 in the position of Pre-Arrangement Counselor. I am able to perform the essential functions of my job with a reasonable accommodation, which I am able to provide at no cost to the company.
I was hired for a position in sales, which is straight commission. Respondent pays me no salary or base pay.
Ted Cisco, Area Sales Director, has delayed the processing of both my new hire packet and the paperwork necessary for the acquisition of my reasonable accommodation. The delay of my accommodation has caused me to not be able to make any sales, therefore causing me to make little to no money.
Cisco has also made several disparaging comments about my hiring because of my disability.
I believe that I have been denied a reasonable accommodation by Respondent's failure to process the paperwork in a timely fashion, and caused to receive very little compensation, in violation of the Americans with Disabilities Act.
The EEOC issued a letter of right to sue on February 27, 2002, pursuant to which Mr. Berg was required to file suit against Roselawn in federal court within 90 days from the date of the letter in order to maintain an action against Roselawn for the allegations contained in the charge. The Plaintiff filed an action against the Defendant in the United States District Court for the Southern District of Indiana, Terre Haute Division, on May 28, 2002, alleging disability discrimination.
On November 20, 2002, 176 days after the Complaint was filed, Magistrate Judge William Hussmann entered a Show Cause Order notifying Mr. Berg that service had not been made and ordering the Plaintiff to show cause for the delay in service on or before December 20, 2002. (See Def.'s Ex. 2.) On December 20, 2002, the Plaintiff filed a Response to the Show Cause Order. Judge Hussmann, on December 27, 2002, ordered the Plaintiff to effectuate service by no later than January 20, 2003. (See Def.'s Ex. 3.) The Plaintiff served the Defendant by depositing the Summons and Complaint, accompanied by a transmittal letter addressed to the Defendant, in the U.S. Mail, via Certified Mail, on January 21, 2003. (Wesley Aff. ¶ 3.) The Defendant received the Summons and Complaint on January 23, 2003. ( Id. ¶ 4.)
On August 1, 2003, the Defendant filed a Motion to Dismiss for Insufficient Service and, in the alternative, a Motion for Summary Judgment on the grounds that the allegations in the Complaint are outside the scope of the EEOC charge. The Plaintiff filed a Response on September 25, 2003. The Defendant filed its Reply on October 10, 2003.
II. Motion to Dismiss
The Defendant moves to dismiss this action under Rule 12(b)(5) of the Federal Rules of Civil Procedure on the grounds of insufficiency of service of process. See Fed.R.Civ.P. 12(b)(5). Rule 4(m) of the Federal Rules of Civil Procedure, governing proper service of process, provides as follows:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specific time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). Even if a plaintiff cannot show good cause for the delay of service, a judge still has discretion to excuse the plaintiff's untimely service of process on a defendant. Coleman v. Milwaukee Bd. of Sch. Directors, 290 F.3d 932, 934 (7th Cir. 2002) (citing Henderson v. United States, 517 U.S. 654, 662 (1996); Troxell v. Fedders of North America, Inc., 160 F.3d 381, 383 (7th Cir. 1998); Panaras v. Liquid Carbonic Indus., 94 F.3d 338, 341 (7th Cir. 1996); Espinoza v. United States, 52 F.3d 838, 840-41 (10th Cir. 1995); Petrucelli v. Bohringer Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)). Where delay of service is caused by excusable negligence, rather than good cause, the judge's decision to grant an extension of the time to provide service is permissive. Id. (citing Troxell, 160 F.3d at 383; ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1459 (10th Cir. 1995)).
On December 27, 2002, Judge Hussmann excused the Plaintiffs negligence in failing to provide timely service on the Defendant and granted the Plaintiff an extension of time in which to make proper service of process. The Plaintiff was ordered to serve the Defendant by January 20, 2003. However, the Plaintiff failed to meet this extended deadline, but mailed the summons and complaint on January 21, 2003, which the Defendant received on January 23, 2003. Thus, the Plaintiff effectuated service of process one day late.
The parties have briefed the issue as one of waiver, i.e, whether the Defendant waived its right to raise this motion to dismiss based on insufficient service. However, the court does not resolve the question of waiver because even if the court were to find that the Defendant did not waive its right to raise the defense, the court would still deny the Defendant's Motion to Dismiss on the merits of the argument.
As the Defendant recognizes, Judge Hussmann's decision to grant an extension of time within which the Plaintiff was required to effectuate service was within Judge Hussmann's discretion. In its Brief, the Defendant does not challenge the reasonableness of Judge Hussmann's order, nor would the Defendant be able to challenge that decision by bringing a Motion to Dismiss. Consequently, the only basis for the Defendant's motion for dismissal is on the grounds that the Plaintiff effectuated service of process one day later than required by Judge Hussmann's order. The court can think of no reason why the same principles governing a plaintiff's failure to make service within the 120 day time period set out in Rule 4(m) should not apply to a plaintiff's failure to make service within the time period set out by a judge who has granted an extension. Accordingly, the court looks to Seventh Circuit case law addressing the issue of untimely service of process to determine whether the Plaintiff's action should be dismissed.
The Seventh Circuit has articulated several factors the court must examine in deciding whether to dismiss a suit because of a plaintiff's failure to satisfy the requirements of Rule 4(m). Three factors recently articulated by the court include prejudice to the Defendant, whether the Defendant had actual notice of the suit, and whether the court's dismissal of the suit without prejudice would in fact prevent the Plaintiff from bring the suit again because of the running of the statute of limitations. Coleman, 290 F.3d at 934.
In Coleman, the plaintiff twice failed to make proper service of process against the school board defendant by twice serving employees who were unauthorized to accept service on behalf of the school board. The Seventh Circuit, in a divided opinion, held that it was not an abuse of discretion for the district court judge to deny an extension of time. Despite the outcome, the overwhelming message of the Coleman opinion was that a court, in deciding whether to dismiss for insufficiency of service, must balance hardships rather than adhere to strict technical rules. For example, Judge Posner, writing for the majority, advised:
Where . . . the defendant does not show any actual harm to its ability to defend the suit as a consequence of the delay in service, where indeed it is quite likely that the defendant received actual notice of the suit within a short time after the attempted service, and where moreover dismissal without prejudice has the effect of dismissal with prejudice because the statute of limitations has run since the filing of the suit . . ., most district judges probably would exercise lenity and allow a late service, deeming the plaintiff's failure to make timely service excusable by virtue of the balance of hardships.Coleman, 290 F.3d at 934 (emphasis added).
Additionally, Judge Williams expressed disapproval of the district court's dismissal of the suit: "As Judges Posner and Evans point out, there is no doubt that the defendants had notice of [the plaintiff's] suit and given the short statute of limitations governing [the plaintiff's] claim, I believe that the better course would have been to let the suit proceed." Id. at 935 (Williams, J., concurring). Judge Evans dissented from the holding:
Given these circumstances — the preference for resolving cases on their merits, a very unique service law . . ., plus actual notice and no prejudice to the defendant — the district court, even if this did not add up to "good cause," should have given [the plaintiff] a little more time to dot her "i's" and cross her "t's." I think most courts, given these circumstances, would have exercised discretion favorable to [the plaintiff]. And because her claim would be (and is now) forever barred by a very short statute of limitations, I believe all but a tiny fraction of district courts would have exercised discretion favorable to [the plaintiff].Id. at 936 (Evans, J., dissenting) (internal citations omitted.)
In the present case, the service law under which the Plaintiff was required to make service was not complicated like the service law in Coleman. However, the remainder of the factors present in Coleman, which persuaded the Seventh Circuit to point out that a majority of district courts would not have dismissed the case, are also present in Mr. Berg's case. First, the Defendant has not demonstrated any actual harm in being able to defend against the suit as a result of untimely service. Second, the Defendant received notice of the suit only days later than it would have had the Plaintiff effectuated service by the date set by Judge Hussmann's order.
Third, because this is an employment discrimination suit, like that in Coleman, the statute of limitations on such a suit is only 90 days. Consequently, if the court were to grant dismissal without prejudice in accordance with Rule 4(m), the actual effect of the judgment would be similar to a dismissal with prejudice because the Plaintiff would be outside the limitations period. In Panaras v. Liquid Carbonic Industries, the Seventh Circuit expressed that it is "incumbent" on the judge to "fully consider" the running of the statute of limitations when deciding whether to extend time for service. 94 F.3d at 341. "When . . . a lawyer has not waited until the end of a more generous statute of limitations before getting a suit going — the situation in Tuke — the fact that the suit cannot be resolved on the merits is a factor that must be given close attention." Id. (distinguishing Tuke v. United States, 76 F.3d 155 (7th Cir. 1996)).
Given these facts, the balance of hardships weighs heavily in the Plaintiff's favor. Moreover, because the grounds for the Defendant's motion is based on a technicality rather than a substantive right, such as personal jurisdiction, the court is more inclined to permit this suit to be resolved on the merits rather than being resolved on a technicality. The Defendant's Motion to Dismiss is DENIED.
III. Motion for Summary Judgment
In the alternative to the Motion to Dismiss, the Defendant argues that the court should grant summary judgment in its favor on the Plaintiff's claims because the Plaintiff's claims, as contained in the Complaint, are outside the scope of the EEOC charge. The Defendant contends that the Complaint is outside the scope of the EEOC charge because the Plaintiff's Complaint states nothing about constructive discharge. Moreover, Mr. Berg's termination from his job at Roselawn occurred one week after Mr. Berg filed the charge.
"Generally, a plaintiff may not bring claims [under the ADA] that were not originally included in the charges made to the EEOC." Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (citations omitted). "This rule serves two purposes: affording the EEOC the opportunity to settle the dispute between the employee and the employer, and putting the employer on notice of the charges against it." Id."The only qualification to this principle applies to claims that are 'like or reasonably related' to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation of the charges." Id. (citing Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). "[D]ifferent claims may be so linked . . . where they are 'so related and intertwined in time, people, and substance that to ignore the relationship for a strict and technical application of the rule would subvert the liberal remedial purposes of the [ADA].'" Id. (quoting Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993)); accord Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002) ("'[T]he EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals.'" (quoting Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995))).
The claims Mr. Berg made in his EEOC charge are almost identical to the claims he makes in his federal court Complaint. In both, Mr. Berg alleges that Roselawn, and members of its management personnel, failed to provide him with a reasonable accommodation for his disability by actively frustrating and delaying the installation and implementation of the accommodation. The only difference is the following: In the EEOC charge, Mr. Berg alleges that as a consequence of Roselawn's failure to accommodate his disability, Mr. Berg was unable to make any sales, causing him to make little or no money. In the Complaint, Mr. Berg alleges that as a result of Roselawn's failure to accommodate his disability, Mr. Berg was constructively discharged.
Although Mr. Berg alleges constructive discharge, the facts of his case do not appear to fit under the traditional doctrine of constructive discharge. To demonstrate constructive discharge, Mr. Berg must show that he was forced to resign because a reasonable employee would believe his working conditions to be unbearable. EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 331 (7th Cir. 2002) (citing Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998)). Another method of demonstrating constructive discharge is "[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that [he] will be terminated, and the plaintiff employee resigns" Id. at 332 (citing Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 377 (7th Cir. 1998)). Then the employer's actions may be construed as constructive discharge of the employee. Id.
Mr. Berg did not resign from his position at Roselawn because the working conditions were unbearable. He did not resign because he anticipated that he would be fired. Rather, it appears that Mr. Berg resigned from his position at Roselawn because, although an employee in name, he was not making any money from the position as a result of the failure to provide accommodations. In other words, the conditions of employment were not unbearable in the sense that Mr. Berg experienced harassment. Rather, the conditions of employment were intolerable in the sense that it would be unreasonable to expect an employee to remain in a job for which he was not receiving income through no fault of his own.
Furthermore, in the Complaint and EEOC charge, Mr. Berg makes claims against the same actors and for the same actions. Although the EEOC charge does not use the words "constructive discharge," since Mr. Berg had not yet quit, the allegations in Mr. Berg's Complaint "'can be reasonably inferred from the facts alleged in the charge.'" See Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 527 (7th Cir. 2003) (quoting Cheek v. W. S. Life Ins. Co., 31 F.3d 497, 503 (7th Cir. 1994)). In the EEOC charge, Mr. Berg alleges that he was unable to make money allegedly due to Roselawn's failure to accommodate his disability. Thus, it was foreseeable from the EEOC charge that if Mr. Berg was not provided the requested accommodation, and he continued to make little or no money as a result, that he would likely have to find different employment. Mr. Berg's constructive discharge claim should not have come as a surprise to Roselawn. The Defendant's Motion for Summary Judgment is DENIED.
IV. Conclusion
For the foregoing reasons, the Defendant's Motion to Dismiss is DENIED and the Defendant's Motion for Summary Judgment is DENIED.
ALL OF WHICH IS ORDERED.