548 F.3d 70 (2nd Cir. 2008), 06-4384, Mathirampuzha v. Potter

Docket Nº:06-4384-cv.
Citation:548 F.3d 70
Party Name:Joseph MATHIRAMPUZHA, Plaintiff-Appellant, v. John POTTER, Postmaster General, United States of America, Defendants-Appellees, Ron Sacco, Defendant.[*]
Case Date:November 03, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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548 F.3d 70 (2nd Cir. 2008)

Joseph MATHIRAMPUZHA, Plaintiff-Appellant,


John POTTER, Postmaster General, United States of America, Defendants-Appellees,

Ron Sacco, Defendant. [*]

No. 06-4384-cv.

United States Court of Appeals, Second Circuit.

November 3, 2008

Argued: March 17, 2008.

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[Copyrighted Material Omitted]

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W. Martyn Philpot, Jr., New Haven, CT, for Appellant.

Lisa E. Perkins, Assistant United States Attorney for the District of Connecticut (Kevin J. O'Connor, United States Attorney, Sandra S. Glover, Assistant United States Attorney, of counsel), Hartford, CT, for Appellees.

Before: WINTER, STRAUB, and SACK, Circuit Judges.

SACK, Circuit Judge:

Plaintiff Joseph Mathirampuzha appeals from a final judgment of the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge ). This appeal arises principally from an alleged physical assault at a postal facility on September 29, 2003, by Ron Sacco, a supervisor, against the plaintiff, a postal employee. The plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 (“ Title VII" ), 42 U.S.C. § 2000e et seq. , and the Federal Tort Claims Act (“ the FTCA" ), 28 U.S.C. § 2671 et seq. The district court granted summary judgment in favor of the defendant on the Title VII claims and dismissed the FTCA claims for lack of subject-matter jurisdiction. Mathirampuzha v. U.S. Postal Serv., No. 3:04cv841, 2006 WL 2458669, 2006 U.S. Dist. LEXIS 62738 (D.Conn. Aug.21, 2006).

With regard to the plaintiff's Title VII claims, the district court properly granted summary judgment. The plaintiff failed to exhaust his hostile work environment and retaliation claims, and the physical assault and denial of transfer requests he alleges were, respectively, not an adverse employment action and not ascribable to discriminatory motive or intent. That portion of the judgment of the district court is affirmed.

With regard to the plaintiff's FTCA claims, the Federal Employees' Compensation Act (the “ FECA" ), 5 U.S.C. § 8101 et seq. , vests the Secretary of Labor with exclusive authority over federal employees' claims arising from work-related injuries. Unless it is clear that the FECA does not apply, federal courts may not entertain FTCA claims. Dismissal of such claims for lack of jurisdiction, however, is not always the proper disposition. In this case, because there was a substantial question regarding whether the plaintiff's emotional-distress claim is covered under the FECA and the Secretary of Labor had not yet rendered a decision regarding his FECA coverage, the district court should not have dismissed that FTCA claim for lack of jurisdiction. We therefore vacate that portion of the district court's judgment. On remand, the district court should reinstate the FTCA claim and stay proceedings pending a final determination by the Secretary of Labor regarding FECA coverage.


“ In setting forth the facts underlying this appeal from the district court's grant of summary judgment to the defendants, we construe the evidence in the light most

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favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in his favor." Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir.2006).

The plaintiff, of Indian national origin, is a lawful permanent resident of the United States. Since 1997, he has been employed by the United States Postal Service as a mail handler at the processing and distribution center in Wallingford, Connecticut.

Soon after the plaintiff began working for the Postal Service, he requested a transfer to the processing and distribution center in Hartford, Connecticut, which is closer to where he and his family live. That request was denied. The plaintiff made several more requests, all of which were ignored or denied.

On September 29, 2003, the plaintiff was physically assaulted by Ron Sacco, a supervisor at the Wallingford plant. (Sacco was not the plaintiff's direct supervisor when the incident occurred.) Sacco grabbed the plaintiff's arm, punched him in the shoulder and the chest, spit in his face, and poked him in the eye. Sacco also shouted, “ Joe, I['ll] never let you go to [the] Hartford plant."

The plaintiff's direct supervisor, Claudio Scirocco, quickly intervened-or, as the plaintiff phrased it, “ came to save my life." A union representative promptly arrived on the scene and brought the plaintiff to the office of a higher-ranking Postal Service supervisor. But the supervisor laughed when the plaintiff told her what had happened. The plaintiff's union continued to advocate on his behalf, however, and Sacco was ultimately issued a “ Letter of Warning" for “ Conduct Unbecoming a Postal Supervisor" and was transferred to another work assignment for at least a year.

The plaintiff asserts that his confrontation with Sacco caused him physical injury and severe emotional distress. He suffered chest pains and contusions to his shoulder blade, required eye surgery, and fell into a depression.

The plaintiff promptly pursued “ pre-complaint counseling" pursuant to 29 C.F.R. § 1614.105 for “ [a]ggrieved persons who believe they have been discriminated against." He then filed an administrative “ EEO Complaint of Discrimination in the Postal Service" on November 2, 2003. The EEO complaint alleged a single act of discrimination: the incident involving Sacco on September 29, 2003.

The plaintiff subsequently filed suit in federal court in Connecticut. In addition to the physical assault by Sacco, the plaintiff's amended complaint alleges that Sacco has “ verbally harassed" him since 1999, has “ subjected him to disparate treatment by denying him approved lunch breaks and assistance in performing work duties," and has retaliated against him for complaining about his treatment. Am. Compl. ¶ 12. By failing to stop such conduct, the plaintiff charges, the Postmaster is liable under Title VII for subjecting him to a hostile work environment.1 The plaintiff also asserts claims under the FTCA, alleging the same facts and demanding relief as a result of Sacco's assault, a hostile work environment, and the Postal Service's negligent supervision of its employees.2

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On August 21, 2006, the district court granted the defendants' motion for summary judgment on the plaintiff's Title VII claims and their motion to dismiss his FTCA claims for lack of subject-matter jurisdiction.

The plaintiff appeals.


I. Standards of Review

“ We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in [that party's] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.2005). “ We will affirm the judgment only if there is no genuine issue as to any material fact, and if the moving party is entitled to a judgment as a matter of law." Id. (citing Fed.R.Civ.P. 56(c)).

Where, as here, the district court's determination whether it had subject-matter jurisdiction is based on an interpretation of federal law, our review of her determination is de novo. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir.2004).

II. Plaintiff's Title VII Claims

Title VII prohibits employment-related discrimination on the basis of race, color, religion, sex, or national origin and retaliation against employees who complain about discrimination. In 1972, Congress extended Title VII's protection to employees of the federal government, including postal workers.342 U.S.C. § 2000e-16(a); see also Loeffler v. Frank, 486 U.S. 549, 558-59, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir.2000). Here, the plaintiff seeks relief under Title VII for being subjected to a hostile work environment on the basis of his race, color, and national origin. His amended complaint may be fairly read also to seek relief under Title VII based upon the encounter with Sacco on September 29, 2003, and Sacco's retaliatory motive for his conduct on that day. The district court determined that the plaintiff's hostile work environment and retaliation claims are barred because he failed to comply with Title VII's administrative exhaustion requirements, and the remainder of his Title VII claim is meritless because he failed to establish an adverse employment action. We agree with that result, although our reasoning differs somewhat from that of the district court.

A. Exhaustion

“ Prior to bringing suit under ... Title VII ..., a federal government employee must timely exhaust the administrative remedies at his disposal." Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir.2001) (per curiam) (citation and internal quotation marks omitted).

Regulations promulgated by the Equal Employment Opportunity Commission (“ EEOC" ) establish the applicable administrative procedures that a federal

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employee must exhaust prior to filing suit. The EEOC regulations require that the aggrieved employee, inter alia, (1) consult with a counselor at the relevant agency's Equal Employment Office (“ EEO" ) within 45 days of the alleged discriminatory act, and, if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint (“ EEO complaint" ) within 15 days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint (“ EEO notice" ). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision.

Id. (citing 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § § 1614.105(a)(1), 1614.106(a) & (b), and 1614.408(a) & (b)).4 “ This court has treated the requirement that a federal employee bring a complaint to his or her EEO for resolution, see 29 C.F.R. §...

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