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TAYLOR v. GEARAN

September 19, 1997

JEFFERY C. TAYLOR, Plaintiff,
v.
MARK GEARAN, DIRECTOR, UNITED STATES PEACE CORPS, et al., Defendants.



The opinion of the court was delivered by: FRIEDMAN

 Jeffery C. Taylor brings this action under the Rehabilitation Act of 1973, 29 U.S.C. § 701; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; 42 U.S.C. § 1983; and the equal protection and due process clauses of the United States Constitution; he also alleges various common law torts. At bottom, he challenges the Peace Corps' conclusion that he is not medically qualified for a position as an overseas volunteer. Defendants have moved to dismiss on a variety of grounds or for summary judgment. *fn1"

 I. BACKGROUND

 In 1992, plaintiff applied for a position as a Peace Corps Volunteer ("PCV"). After plaintiff's 1992 application lapsed, the Peace Corps requested that he file a new application and he did so in August 1993. In this application, plaintiff responded in the negative to all questions regarding whether he had ever undergone psychiatric or psychological counseling or treatment. Defs.' Statement of Material Facts, PP 1-3.

 In February 1994, the Peace Corps notified plaintiff that he was preliminarily eligible for a position. Three months later, on May 11, 1994, plaintiff was determined to be medically qualified for service. Defs.' Statement of Material Facts, PP 4, 5. Plaintiff received two placement offers -- Lesotho and Cameroon. Plaintiff declined the first placement and accepted the Cameroon placement on May 24, 1994. Id. at P 8.

 As part of the security and legal eligibility check, the Peace Corps performed a National Agency Check ("NAC"), without which no applicant is eligible. See 22 C.F.R. § 305.3. *fn2" In a NAC, a federal agency requests that all other federal agencies provide any information they have about certain persons. In the course of plaintiff's NAC, the Air Force discovered a 1979 report on plaintiff prepared by the Chief of the Mental Health Clinic at Tyndall Air Force Base. After plaintiff had been offered the Cameroon placement and after he had accepted it, the Peace Corps Office of Placement received this report and forwarded to the Office of Medical Services. Defs.' Statement of Material Facts, PP 9, 19-20; see Administrative Record ("A.R.") at 431. *fn3"

 The 1979 Air Force report stated that plaintiff suffered from a "personality disorder, severe, mixed, with hypomanic schizoid, and narcissistic aspects. Motivation and thought pattern are mixed and disorganized." A.R. at 557. The report labeled this disorder "chronic" and stated that it revealed itself "through habitual patterns of behavior which interfere with adequate adjustment and cause conflict with the environment." Id.

 On the basis of this diagnosis, plaintiff was honorably discharged from the Air Force on April 18, 1979. The discharge was "coded" to prevent plaintiff's reenlistment or his enlistment in the reserves. Defs.' Statement of Material Facts, PP 15, 16; Pl.'s Response in Opp'n to Defs.' Mem. of Points and Authorities, 4-5, 14. *fn4"

 On August 10, 1994, defendant Charlene Dawson, Peace Corps Screening Nurse in the Office of Medical Services, forwarded the 1979 report to defendant Marilyn Krasner, a Peace Corps Mental Health Consultant. Defs.' Statement of Material Facts, P 20. Based on her review of the record, Ms. Krasner determined that plaintiff would be at an "extremely high risk for symptom exacerbation" if he were to serve overseas because of the "stressful environment potential" in the Peace Corps and overseas. Id. at P 21; A.R. at 142. Defendant Michael Silvers, a Peace Corps Medical Advisor, reviewed Ms. Krasner's report, concurred with the assessment and determined that plaintiff should be medically disqualified. Defs.' Statement of Material Facts, P 23; A.R. at 122.

 On August 10 and 11, 1994, defendant Dawson informed plaintiff orally and in writing that he was no longer considered medically qualified, effectively withdrawing the Peace Corps' offer to plaintiff. Defs.' Statement of Material Facts, PP 24, 25; A.R. at 155 (letter to plaintiff dated August 11, 1994). Ms. Dawson also notified plaintiff of his right to appeal and informed plaintiff that a current psychiatric evaluation would be needed for an appeal. Defs.' Statement of Material Facts, PP 26, 27; A.R. at 155. Plaintiff provided a current psychiatric evaluation by November 1994. Defs.' Statement of Material Facts, P 28. The evaluation he submitted was generally favorable. It stated:

 
The mental status examination revealed a thin, neatly dressed, cooperative, talkative male. He [sic ] mood was euthymic and affect was anxious. He denied suicidal or homicidal thought. . . . His thoughts were coherent and appropriate. He was alert and oriented to person, place and time. His memory and concentration were adequate, and there were no cognitive deficits.
 
Mr. Taylor was found to be a well functioning gentleman without evidence of a major psychiatric disorder. . . . He demonstrates no family or work interrelational problems.

 A.R. at 158-59 (letter from Dr. James Harold to Charlene Dawson, dated November 7, 1994). The evaluation also mentioned a previous evaluation for stress that had not been disclosed on plaintiff's application for a PCV position. Id. Defendant Dawson requested information regarding this prior evaluation but plaintiff supplied no further documentation. Defs.' Statement of Material Facts, PP 31-32.

 In December 1994, defendant Dawson advised plaintiff that, after further review of the information it had, the Peace Corps had determined that he still was not medically qualified for service. Defs.' Statement of Material Facts, P 33. Plaintiff requested then-Director of the Peace Corps Carol Bellamy to render a decision in his case. Id. at P 34. Plaintiff provided no additional records. Id. Defendant David Gootnick, Director of the Office of Medical Services, reviewed plaintiff's record and concluded that based on plaintiff's psychological record he was not medically qualified and so notified plaintiff on February 16, 1995. Id. at P 36.

 Shortly after receiving the initial adverse decision in August 1994, plaintiff initiated an administrative complaint under the Peace Corps' American Diversity Program. Defs.' Statement of Material Facts, P 37. After informal counseling, he filed a formal complaint in April 1995. Id. at P 38. His formal complaint alleged discrimination based on race and perceived mental disability. Id. at P 39. An investigation was conducted, and a report of investigation was issued; plaintiff was afforded the opportunity to supplement the report but did not do so. Id. at PP 40-41.

 Plaintiff filed the instant suit on July 30, 1996, alleging discrimination based on a record of and/or a perception of a mental disability, discrimination based on race, the denial of equal protection and due process and violations of state and federal law.

 II. MOTION TO DISMISS

 The defendants whom plaintiff has sued in their individual capacities -- Dr. Gootnick, Dr. Silvers, Ms. Krasner and Ms. Dawson -- move to dismiss the claims against them on a number of grounds.

 First, defendants maintain that they were never served properly with the summons and complaint in this case and that this Court therefore is without personal jurisdiction over them. See Rule 4, Fed. R. Civ. P. As defendants point out, the burden of establishing personal jurisdiction is on plaintiff. See Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1052 (D.C. Cir. 1984). The only evidence of any service on defendants is plaintiff's claim that Mr. Burn Reist, the Peace Corps' Executive Secretary, and "[B] Spencer," a Peace Corps resident agent, signed for all defendants in their individual and official capacities. Pl.'s Response in Opp'n to Defs.' Mot. to Dismiss at 6; Pl.'s Affidavit of Service of Process - Return, Docket Nos. 6, 9 (Dec. 2, 1996); see Defs.' Mem. of Points and Authorities, Ex. 1.

 It is established that a defendant's service on his or her employer or its agents is not sufficient to effect personal service on an individual being sued in his or her personal capacity. See Simpkins v. District of Columbia, 323 U.S. App. D.C. 312, 108 F.3d 366, 368-69 (D.C. Cir. 1997) (government employees sued personally for money damages must be personally served under Rule 4(e), Fed. R. Civ. P.); Navy, Marshall & Gordon, P.C. v. United States International Development-Cooperation Agency, 557 F. Supp. 484, 489-90 (D.D.C. 1983) (federal agents sued in individual capacities for money damages must be served personally and not by certified mail or service upon offices in which defendants work); Betlyon v. Shy, 573 F. Supp. 1402, 1405 (D. Del. 1982) (same). Plaintiff has failed to demonstrate that he has personally served the defendants sued in their individual capacities.

 Second, regardless of service, these defendants argue that they are entitled to official immunity with respect to any claim asserted against them in their individual capacities because plaintiff's allegations do not establish that their conduct violated any clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1981). The burden is on plaintiff to demonstrate a prima facie case of defendants' knowledge of impropriety. Krohn v. United States, 742 F.2d 24, 31-32 (1st Cir. 1984). With the exception of the Rehabilitation Act and Title VII claims, plaintiff has failed to ...


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