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Tanksley v. Tennessee Valley Authority

United States District Court, E.D. Tennessee

December 14, 2017




         This civil action is before the Court on defendant's Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(5) and 4(m) [Doc. 7]. Plaintiff responded opposing this motion [Doc. 9], and defendant replied [Doc. 10]. The parties have also filed further supplemental briefs pursuant to Local Rule 7.1(d) [Docs. 12-13]. Defendant's motion to dismiss is therefore fully briefed and ready for disposition. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court will deny defendant's motion.

         I. Background[1]

         This case concerns allegations of disability discrimination in violation of the Americans with Disabilities Act of 2008 (the “ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.

         A. Factual History

         Defendant, the Tennessee Valley Authority (“TVA”), is an executive branch corporate agency and instrumentality of the United States, created by and existing pursuant to the TVA Act of 1933, 16 U.S.C. § 831 et seq. [Doc. 8 p. 1]. Plaintiff, a resident of Hamilton County, Tennessee, asserts that he was defendant's “employee” within the meaning of the ADA at all times relevant to this action [Doc. 1 ¶¶ 2, 4]. Plaintiff began his employment with defendant in 1997, and, by 2013, he was working as a Backup Administrator in its information technology division [Id. ¶ 9]. Plaintiff alleges that he suffered multiple traumatic injuries as a result of motor vehicle accidents in 1982 and 1995, including several fractured and broken bones, a spinal injury, and a compromised immune system [Id. ¶¶ 7-8]. Plaintiff further asserts that, by January 2013, he was suffering from scoliosis, a bulging disc, fused vertebrae, fused ribs, carpel tunnel syndrome, arthritis, sleep apnea, and severe testosterone deficiency [Id. ¶ 10]. Plaintiff submits that these conditions limited his ability to sit, lift, carry, walk, stand, reach, and perform other manual tasks, in addition to causing him severe and chronic pain [Id. ¶ 11].

         As a result of these conditions, plaintiff began receiving treatment from a pain management physician [Id. ¶ 12]. Plaintiff alleges that, in 2013, he completed Family and Medical Leave Act (“FMLA”) paperwork to cover absences caused by these conditions and submitted a letter from his physician explaining that he was in compliance with his pain management regimen and would be able to continue working [Id. ¶¶ 14-15]. Plaintiff asserts, however, that he received conflicting statements from defendant as to whether he could continue working while taking his prescribed medications [Id. ¶ 14]. Plaintiff further alleges that defendant forced him to undergo a fitness for duty (“FFD”) examination after completion of his FMLA certification and treated him differently than other employees by not permitting him to work remotely [Id. ¶¶ 16-17]. Plaintiff also asserts that, when he had to secure an alternative provider after his physician downsized her practice, defendant required an additional FMLA certification and FFD examination [Id. ¶¶ 18-19].

         Next, plaintiff asserts that his manager, Stephen Avans, required him to undergo yet another FFD examination for what plaintiff later discovered to be false and discriminatory reasons [Id. ¶¶ 20-21]. Plaintiff alleges that defendant then informed him he would not be able to continue working while taking his prescribed medication, despite plaintiff having successfully performed his duties while on the same or similar regimen of pain control for over a decade [Id. ¶ 23]. Plaintiff also asserts that defendant refused to consider the fact that “any misperception as to his alertness and ability to perform his duties” may have been due to an interruption in his testosterone medication resulting from a change in defendant's insurance coverage [Id. ¶ 24]. Plaintiff thus asserts that his employment was terminated as a result of an ADA-covered disability [Id. ¶ 25].

         B. Procedural History

         Plaintiff originally filed a charge of disability discrimination against defendant with the United States Equal Employment Opportunity Commission (“EEOC”) on July 9, 2014 [Doc. 9-1 p. 5]. After 180 days passed without a final decision from the EEOC, plaintiff withdrew his request for a hearing and provided notice of his intent to file suit in federal court [Id.]. Then, on December 11, 2016, plaintiff filed this action against defendant, alleging that defendant unlawfully discriminated against him by (1) terminating him because of his disability, and (2) failing to provide him with a reasonable accommodation [Id. ¶¶ 27-28]. Plaintiff named TVA President and Chief Executive Officer William D. Johnson as the defendant, in his official capacity.

         The Clerk of Court issued a summons as to Johnson the next day, December 12 [Doc. 2]. However, plaintiff took no further action in this case until March 31, 2017, when he moved for a thirty-day extension of time to serve process [Doc. 3]. Plaintiff submitted that during the week after the filing of his complaint, he underwent an emergency surgical procedure and, in light of the uncertainty of his recovery, it was unclear whether the case should proceed [Id. at 1]. But plaintiff further submitted that his condition had since improved, that he intended to proceed with this action, and that he was serving process on defendant contemporaneously with his motion [Id. at 1-2]. On April 4, Magistrate Judge Susan K. Lee entered an order granting plaintiff's motion [Doc. 4]. On May 4, plaintiff's counsel filed an affidavit stating he had served the summons and complaint on R.D. Smith, an agent for TVA General Counsel Sherry A. Quirk, by certified mail [Doc. 6]. Plaintiff's counsel attached a certified mail receipt demonstrating that Smith received delivery of the summons and complaint on Quirk's behalf on April 3 [Doc. 6-1].

         On May 26, defendant filed the instant motion to dismiss due to insufficient service of process, pursuant to Federal Rule of Civil Procedure 12(b)(5) [Doc. 8]. In this motion, defendant argues that the means of service described above are improper under Rule 4(i), which sets out the requirements for service of process on an officer or employee of a United States corporation sued in an official capacity. Plaintiff responded on June 5, arguing that (1) plaintiff's counsel's method of service should be deemed sufficient, given his past course of dealing with TVA, and (2) alternatively, the Court should permit a second extension of time to effect proper service [Doc. 9]. Defendant replied on June 12 [Doc. 10]. Then, on June 27, plaintiff's counsel filed an affidavit and supporting documentation showing he had completed service by certified mail on the U.S. Attorney for the Eastern District of Tennessee on June 15, and on the U.S. Attorney General in Washington, D.C., on June 19 [Docs. 11, 11-1, 11-2, 11-3, 11-4]. Plaintiff then filed a supplemental brief informing the Court that, in his view, service of process was now properly accomplished under Rule 4(i), albeit outside the thirty-day extension granted by Magistrate Judge Lee [Doc. 12]. Defendant responded that the Court should not consider such service effective and should instead dismiss plaintiff's complaint [Doc. 13].

         II. Analysis

         Federal Rule of Civil Procedure 12(b)(5) authorizes courts to dismiss an action for insufficient service of process. Such a motion “is the proper vehicle for challenging the mode of delivery or the lack of delivery of the summons and complaint.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 1998). “Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties.” O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003). The plaintiff is responsible for serving the summons and complaint in accordance with Federal Rule of Civil Procedure 4 and, in particular, within the time permitted by Rule 4(m). See Fed. R. Civ. P. 4(c)(1). “[A]ctual knowledge and lack of prejudice cannot take the place of legally sufficient service.” LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999). Indeed, rather than being “some mindless technicality, ” proper service of process is an essential prerequisite to the Court gaining personal jurisdiction over the defendant. Friedman v. Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991) (quoting Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir. 1987)).

         The parties appear to agree that Rule 4(i) governs service of process on defendant [See Doc. 8 p. 3; Doc. 12 pp. 1-2]. First, to serve an officer of a U.S. corporation sued solely in an official capacity, the plaintiff must both (1) serve the United States itself, and (2) send the summons and complaint to the officer by registered or certified mail. Fed.R.Civ.P. 4(i)(2). Second, to serve the United States, the plaintiff must (1) send the summons and complaint by registered or certified mail to the U.S. Attorney General in Washington, D.C., and (2) either (a) deliver the summons and complaint to the U.S. Attorney for the district where the action is brought, or (b) send the summons and complaint by registered or certified mail to the civil-process clerk at the U.S. Attorney's office. Fed.R.Civ.P. 4(i)(1)(A)-(B). Therefore, to properly complete service of process in this case, plaintiff was required to serve the U.S. Attorney General, the U.S. Attorney for the Eastern District of Tennessee, and the named defendant, TVA President and CEO William D. Johnson, all within the time period provided by Rule 4(m).

         Next, Rule 4(m) provides as follows:

If a defendant is not served within 90 days after the complaint is filed, the court . . . must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the ...

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