
USCA1 Opinion

	




      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 98-1597                        GEORGE E. KERSEY,                      Plaintiff, Appellant,                                v.                 UNITED STATES AIR FORCE, ET AL.,                      Defendants, Appellees.                       ____________________Nos. 98-1598     98-1599                        GEORGE E. KERSEY,                      Plaintiff, Appellant,                                v.                    SHEILA E. WIDNALL, ET AL.,                      Defendants, Appellees          APPEALS FROM THE UNITED STATES DISTRICT COURT                FOR THE DISTRICT OF MASSACHUSETTS        [Hon. George A. O'Toole, Jr., U.S. District Judge]                              Before                     Selya, Stahl and Lynch,                        Circuit Judges.                                                                     George E. Kersey on brief pro se.     Donald K. Stern, United States Attorney and Michael J.Pineault, Assistant U.S. Attorney on brief for appellees.December 10, 1998                                                                                  Per Curiam.  We have carefully reviewed the record in    this case, including the briefs of the parties and the    memorandum and order of the district court.  We affirm the    grant of summary judgment to defendants/appellees essentially    for the reasons given by the district court in its memorandum    and order, dated March 12, 1998. We add only the following    brief comments.              Even if we assume arguendo that defendants/appellees    served their motion to dismiss one day late, Kersey has not    alleged any prejudice from the delay.  Thus, the district court    was well within its discretion in considering the motion.  SeeCoughlin v. Tailhook Ass'n Inc., 818 F. Supp. 1366, 1368 (D.    Nev. 1993) (court will consider motion to dismiss since filing    one day late did not prejudice plaintiff).              We find no error in the decision by the EEOC to    dismiss Kersey's complaint without having informed him    beforehand of its reliance on the doctrine of constructive    receipt.  Moreover, since the Notice of Final Interview was    delivered to the address Kersey provided and was received by an    individual of suitable age and discretion, Kersey has not    raised any issue which might rebut the presumption of    constructive receipt.  Consequently, he suffered no prejudice    from any failure by the agency to inform him of its reliance on    the doctrine prior to his final appeal.              Finally, Kersey has not alleged any facts which show    that the actions which form the basis of his complaint were    performed by his supervisors outside of the scope of their    employment.  Hence, no cause of action exists against them in    their individual capacities.              Affirmed.  See 1st Cir. Loc. R. 27.1.                                            
