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Nelson v. Waste Management of Arkansas South

December 2, 2005

MACK NELSON PLAINTIFF
v.
WASTE MANAGEMENT OF ARKANSAS SOUTH, ET AL. DEFENDANTS



ORDER

Plaintiff filed this action alleging that defendants discriminated against him on the basis of disability and race when he was discharged. Defendant Waste Management of Arkansas, Inc. ("WMA") has filed a motion to dismiss, raising a number of issues including: (1) defendant WMA is incorrectly named in the complaint; (2) plaintiff failed to properly serve WMA with the summons and complaint; (3) plaintiff's claims should be dismissed because plaintiff's charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") was untimely; (4) plaintiff's other claims should be dismissed as being outside the scope of the EEOC charge which alleged only discharge; and (5) the complaint fails to state a claim upon which relief can be granted.

Plaintiff filed an amended complaint which corrected the name of defendant to Waste Management of Arkansas, Inc., thereby rendering moot WMA's first argument. The amended complaint, in all other respects, is identical to the original complaint which was filed on August 31, 2005.

WMA states that plaintiff failed to properly serve the designated agent for service of process. Plaintiff mailed the summons and complaint to George Whale, whom plaintiff contends is the managing agent for the facility located at Pine Bluff, Arkansas.

Service of the summons and complaint by mail is governed by Arkansas law. See Fed. R. Civ. P. 4(e)(1) (service by mail in accordance with law of state in which district court is located). Pursuant to Ark. R. Civ. P. 4(d)(8)(A)(I), service by mail must be with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. The agent "must be authorized in accordance with U.S. Postal regulations."

Here, delivery of the summons and complaint was not "restricted." Whale is not the designated agent for WMA. WMA's registered agent for service of process is The Corporation Company.

Although service was not in compliance with Ark. R. Civ. P. 4(d), dismissal of the amended complaint is not mandated. The Court has discretion to dismiss the action or retain the case but quash the service that has been made on the defendant. Haley v. Simmons , 529 F.2d 78, 79 (8th Cir.1976). The 120 days for obtaining service provided by Fed. R. Civ. P. 4(m) has not passed and WMA will not be prejudiced by providing plaintiff some additional time to obtain proper service. Thus, service on WMA will be quashed. Plaintiff must effect proper service within 20 days of the entry of this Order. Failure to do so will result in dismissal of this action.

WMA also alleges that the complaint should be dismissed because plaintiff's EEOC charge was untimely. A charge of discrimination must be filed within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). Plaintiff alleges that he was fired by WMA on November 9, 2004.*fn1 The EEOC charge was signed on June 6, 2005, more than 180 days after the discharge.

Plaintiff contends that he filed his EEOC charge on April 27, 2005, within the 180 days of discharge, and that he signed the formal charge of discrimination on June 6, 2005.*fn2 In support of his position, he has attached correspondence from the EEOC dated April 28, 2005, referring to allegations of discrimination against WMA submitted on April 27. Because plaintiff had alleged in earlier correspondence that the last date of discrimination was September 11, 2004, the EEOC notified plaintiff that the issues of which plaintiff' complained were non-jurisdictional due to untimeliness. That is, the information submitted on April 27, 2005, was untimely. The EEOC advised plaintiff that he could still file a charge against WMA but it would be dismissed because it would be untimely and a Notice of Right to Sue would be issued.

Plaintiff's counsel then wrote a letter on May 4, 2005, to the EEOC stating that the September 11th date was in error; that the date of the last discriminatory action was November 9, 2004. The letter refers to plaintiff's EEOC charge of April 18, 2005. The intake questionnaire which was attached to the May 4th letter is signed by plaintiff but not dated. Plaintiff received a notice from the EEOC that his interview was scheduled for June 6, 2005.

The filing of a timely charge with the EEOC is not a jurisdictional prerequisite, but is a condition precedent, and like a statute of limitations which is subject to equitable tolling. Lawrence v. Cooper Communities, Inc. , 132 F. 3d 447, 451 (8th Cir. 1998). The Eighth Circuit has held that held that an intake questionnaire neither signed under oath nor verified does not constitute a valid charge under Title VII. See Shempert v. Harwick Chem. Corp. , 151 F. 3d 793, 796 (8th Cir. 1998).

There is some question as to the viability of the Eighth Circuit's position in light of Edelman v. Lynchburg College , 535 U.S. 106 (2002) See Sifferman v. Bd. of Regents, Southeast Missouri State Univ. , 250 F. Supp. 2d 1139, 1143 (E. D. Mo.2003). In Edelman , the plaintiff argued that his letter to the EEOC was a timely filed charge and that under an EEOC regulation, the verification on the charge related back to the letter. The Supreme Court, while upholding the EEOC regulation as a valid interpretation the statute governing the filing of charges under Title VII (42 U.S.C. § 2000e-5) did not address whether the letter constituted a valid charge. 535 U.S. at 188-119.

The plaintiff in Edelman had written a five-page, single-spaced letter on November 14, 1997 setting forth his allegations of discrimination, and stating that he was filing a charge of discrimination against Lynchburg College. The letter was signed but not verified. The EEOC subsequently conducted an interview on March 3, 1998, the charge form was sent to the plaintiff on March 1998, for his signature, and was received by the EEOC from plaintiff on April 15, 1998, which was 313 days after the June 6, 1997 date of alleged discrimination by the College.*fn3 On remand to the Fourth Circuit Court of Appeals, the court held that the November 14th letter was a valid charge to which the EEOC charge form could relate back. Edelman v. Lynchburg College , 300 F. 3d 400, 405 (8th Cir. 2002).

This case is similar to that of Edelman . Here, plaintiff submitted a signed intake questionnaire which fulfilled the regulatory requirements of a charge. 29 C. F. R. § 1601.12.*fn4 His counsel alerted the EEOC telephonically on May 3, 2005, that the September 11th date which was used in the information form submitted on April 18, 2005, was in error. Plaintiff submitted a revised intake questionnaire prior to the expiration of the 180 days of the alleged last discriminatory action.

Furthermore, EEOC's failure to arrange for an interview until after the expiration of the 180 days does not preclude plaintiff's Title VII claim. See Edelman, 400 F. 3d at 404. ("Once a valid charge has been filed, a simple failure by the EEOC to fulfill its statutory duties regarding the charge does not preclude a plaintiff's Title VII claim.") See also Lawrence, 132 F. 3d 452 (EEOC failure to complete formal charge form and obtain plaintiff's ...


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