Arbour v. Jenkins

• Decision Date: 15 May 1990
• Docket Number: No. 89-1747,89-1747
• Citation: 903 F.2d 416
• Parties: Sheila ARBOUR, Personal Representative of the Estate of Victor Arbour, Plaintiff-Appellant, v. Eugene JENKINS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 416

903 F.2d 416

58 USLW 2717

Sheila ARBOUR, Personal Representative of the Estate of Victor Arbour, Plaintiff-Appellant, v. Eugene JENKINS, et al., Defendants-Appellees.

No. 89-1747.

United States Court of Appeals, Sixth Circuit.

Argued April 5, 1990.

Decided May 15, 1990.

Lance A. Fertig (argued), Birmingham, Mich., for plaintiff-appellant.

Ellen G. Ritteman, Asst. U.S. Atty., Detroit, Mich., Scott R. McIntosh (argued), U.S. Dept. of Justice, Appellate Div., Barbara Herwig, U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, D.C., for defendants-appellees.

Before KEITH and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Sheila Arbour appeals the district court's order granting the United States' motions (1) to substitute itself as the proper defendant and (2) to dismiss the action. For the following reasons, we reverse the district court's order.

I.

Plaintiff-appellant Sheila Arbour brought this wrongful death action on behalf of her deceased husband, Victor Arbour, against Eugene Jenkins, John T. Smith, Edward Novak, and Charles Kehoe, all employees of the Detroit Post Office. The decedent was employed at the Detroit Post Office from 1982 until his death on December 30, 1985. Appellant alleges that postal supervisors Jenkins, Smith, and Kehoe, along with Labor Relations Representative Novak, unfairly and unjustifiably harassed her husband with employment-related disciplinary actions. Sheila Arbour alleges that, as a result of these disciplinary actions, her husband "suffered from delayed physical functions caused by negative stimulus thus causing decedent to be involved in a head on collision with a truck." The factual background is as follows:

On May 1, 1982, Victor Arbour, a veteran, received a career appointment to the Detroit Post Office as an automobile mechanic. Arbour thereafter became a member of the American Postal Workers Union ("Union"), the postal workers' exclusive bargaining agent. On December 8, 1982, the Postal Service issued a proposed notice to terminate Arbour's employment due to his failure to disclose his full criminal record on his employment application. On December 21, 1982, management and the Union entered into a grievance settlement which modified Arbour's removal to a thirty-day suspension. Labor Relations Representative Novak signed the settlement agreement on management's behalf.

On March 5, 1983, Arbour was promoted to body fender repairman. On September 28, 1983, the Postal Service again issued a proposed notice to terminate Arbour due to his excessive absenteeism and his absences without permission. Arbour's supervisor, Eugene Jenkins, issued the removal notice. Arbour filed a grievance with the Union appealing the removal action. On November 4, 1983, management and the Union entered into a second grievance settlement which modified the removal to a thirty-day suspension. This grievance settlement, termed a "Last Chance" settlement, placed Arbour on notice that he had to alleviate his attendance-related problems.

On February 22, 1984, Postal Service officials notified Arbour that his scheduled salary increase would be withheld because he had failed to meet the requirements of his position. On April 24, 1984, Arbour received another proposed termination notice for his absences without permission. The decedent filed a grievance with the Union regarding the proposed removal. Postal Service supervisor Kehoe affirmed the proposed notice of removal on May 23, 1984. Management and the Union, however, reached a grievance settlement on June 11, 1984, which rescinded Arbour's proposed removal. Meanwhile, on May 25, 1984, Postal Service officials again withheld Arbour's scheduled salary increase due to the decedent's alleged failure to meet his job requirements.

On June 18, 1984, Arbour received yet another proposed termination notice for his absences without permission. The termination was affirmed by supervisor Kehoe on July 10, 1984. Arbour thereafter filed a grievance appealing his removal, but the grievance was denied at the final step of the grievance procedure on August 21, 1984. Arbour appealed the June 18, 1984 removal notice to the Merit Systems Protection Board ("Board").

On October 31, 1984, a Board hearing was held. Arbour testified on his own behalf, called witnesses, and presented evidence. On December 12, 1984, the Board reversed the June 18, 1984 removal action and reinstated Arbour with back pay. The Board determined that Arbour had properly notified Postal Service supervisors of his absences, adding that Arbour had acute personal problems during the relevant time period. The Board concluded, however, that Arbour had failed to advise his supervisors of his emotional problems, thereby precluding any recovery on Arbour's handicap discrimination claim.

On November 8, 1985, the Postal Service issued a warning letter to Arbour for an absence without permission. Later that day, while driving home from work in his personal automobile, Arbour was involved in an automobile accident. Arbour died on December 30, 1985, from the injuries sustained in the accident.

On April 3, 1987, Arbour's widow, the plaintiff-appellant, filed a workman's compensation claim with the Department of Labor for death benefits. The Department of Labor denied Arbour's workman's compensation claim on October 6, 1987, after determining that the injuries sustained on November 8, 1985 (and the decedent's death on December 30, 1985) were not employment related. The Department of Labor affirmed its decision on reconsideration on December 21, 1987.

On December 30, 1987, two years after her husband's death, Sheila Arbour filed a tort action in state court against Eugene Jenkins, John T. Smith, Edward Novak, and Charles Kehoe. The appellant claimed that these employees had committed common law torts which were responsible for her husband's death. Mrs. Arbour alleged that, during the two years preceding the automobile accident, the appellees had taken various actions which had caused her husband much emotional distress ultimately leading to a mental collapse causing the decedent's fatal accident. The appellant specifically alleged that these employees: filed incorrect reports regarding Mr. Arbour's absences from work; wrongfully denied Mr. Arbour leave time; required Mr. Arbour to take a safety course following a job-related eye injury; referred Mr. Arbour to a substance abuse treatment program; and locked Mr. Arbour in a maintenance garage.

The defendants, represented by the United States, removed the suit from state court to federal court in February, 1988. In November, 1988, the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act") went into effect. By its terms the Westfall Act "appl[ies] to all claims, civil actions, and proceedings pending on ... the date of the enactment of this Act." Pub.L. No. 100-694, Sec. 8(b), 102 Stat. 4563, 4565-66. Accordingly, the provisions of the Westfall Act apply to this action even though Mrs. Arbour filed suit before the Westfall Act was enacted.

In January, 1989, acting pursuant to the Attorney General's delegation of authority, the United States Attorney for the Eastern District of Michigan certified that the defendants had been acting within the scope of their employment with regard to the events underlying the appellant's cause of action. Once such a certification is made the Westfall Act provides that the suit "shall be deemed an action against the United States" under the Federal Tort Claims Act ("FTCA") and "the United States shall be substituted as the party defendant." 28 U.S.C. Sec. 2679(d)(1), (d)(2) (1989). The United States thereupon moved the district court to substitute it as the proper defendant. The United States also moved to dismiss the suit due to Mrs. Arbour's failure to exhaust administrative remedies under the FTCA.

Mrs. Arbour opposed the United States' motions as premature. Though the defendants had provided answers to written interrogatories, Mrs. Arbour asked the district court to allow her additional discovery before acting on United States' motions. The appellant suggested that additional discovery was necessary to determine if the defendants had been acting within the scope of their employment. Mrs. Arbour also suggested that further discovery was necessary to determine whether the defendants' actions had been discretionary.

On May 26, 1989, the district court granted the government's motion to substitute the United States as the proper defendant. 713 F.Supp. 229. The district court thereafter dismissed the suit for appellant's failure to exhaust administrative remedies. The district court observed that "the plain language of the various provisions" of the Westfall Act and the FTCA make the United States the sole defendant and require that Mrs. Arbour comply with the FTCA's administrative exhaustion requirement. The district court, holding that a scope certification by the Attorney General, or his designee, is conclusive for purposes of substitution under the Westfall Act, rejected the appellant's demand for additional discovery.

Arbour thereafter filed a timely notice of appeal.

II.

The Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub.L. No. 100-694, 102 Stat. 4563 (codified as amended at 28 U.S.C. Sec. 2679 (Supp.1989)) became law when President Reagan signed the Act on November 18, 1988. The law amended the Federal Tort Claims Act to provide for the substitution of the United States as a defendant in an action where a federal employee is sued for monetary damages arising from a common law tort allegedly committed by the federal employee acting within the scope of his or her employment. See Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th Cir.1989). The Act provides the exclusive remedy for injuries to persons or property arising from the tortious acts of federal employees acting...