Borawski v. Henderson

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: Cooper
• Citation: Borawski v. Henderson, 265 F.Supp.2d 475 (D. N.J. 2003)
• Decision Date: 10 June 2003
• Docket Number: Civil Action No. 01-2215 (MLC).
• Parties: Randy BORAWSKI, Plaintiff, v. William J. HENDERSON, et al., Defendants.

265 F.Supp.2d 475

Randy BORAWSKI, Plaintiff, v. William J. HENDERSON, et al., Defendants.

Civil Action No. 01-2215 (MLC).

United States District Court, D. New Jersey.

June 10, 2003.

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Michael R. Curran, Clifton, NJ, for Plaintiff.

John Andrew Ruymann, Office of the United States Attorney, Trenton, NJ, for Defendants.

MEMORANDUM OPINION

COOPER, District Judge.

This matter comes before the Court on the motions by the United States of America ("the United States" or "the Government") and the defendant William J. Henderson, in his capacity as the Postmaster General ("the Postmaster General" (collectively "the federal defendants") to (1) substitute the United States for Judith A. Fisco ("Fisco") as defendant;¹ and (2) dismiss the amended complaint for (a) lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (b) failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). The plaintiff, Randy Borawski ("Borawski"), opposes the motions. (2-19-03 Notice of Obj. to Certif. of Scope of Fed. Empl. ("2-19-03 Notice of Obj."); PL's Mem.)² For the reasons stated herein, the motions will be granted and the action will be dismissed.

BACKGROUND

I. Facts

Borawski has been both a letter carrier for the United States Postal Service ("USPS") and a shop steward for the National Association of Letter Carriers ("NALC" or "the Union"), since 1979. (Am.Compl.1f 7.) At ail times relevant to this action, he has been stationed at a post office in Bound Brook, New Jersey. Borawski brings this action against his supervisor, Fisco, and the Postmaster General, seeking damages resulting from, inter alia, an allegedly defamatory memorandum written and disseminated by Fisco. (Id. ¶¶ 2,16.)

Fisco was a supervisor at a post office in Edison, New Jersey until August 1997 when she was transferred to the Bound Brook post office. (Id. 119.) According to Borawski, union officials informed him that Fisco "had been pushed out of the Edison faculty, where she was a supervisor, on account of numerous bizarre incidents."³ (Id.)

Borawski alleges that Fisco's "bizarre" behavior continued at the Bound Brook post office. (Id. ¶ 10.) Borawski allegedly filed numerous grievances with Fisco related to, among other things, Fisco's behavior. (Id) "In violation of the collective bargaining agreement," Fisco allegedly refused to process these grievances, and, "instead, sought out ways to retaliate against [Borawski], not allowing him to use an office telephone to conduct union business, attempting to impose lengthy suspensions for de minimis infractions, etc." (Id.) Borawski's alleged "de minimis infractions" included "driving with his postal vehicle door open while turning left into an intersection" and "backing into the post office loading dock with his postal vehicle door open." (Id, Ex. C.) While the Union Management Pairs ("UMPS") found that Fisco's proposed suspensions for these infractions were excessive, it also noted that Borawski's conduct was "contrary to postal regulations." (Id)

The Postmaster at the Bound Brook post office, Estella Hart ("Hart"), signed a document dated November 10, 1997, in which she (1) agreed that Fisco was violating her collective bargaining obligations; and (2) "assured the Union" that Fisco would be subject to disciplinary action should such violations continue. (Id. ¶10 & Ex. D.) As a result, Fisco allegedly "attempted to form a truce with ... [Borawski] and approached him to `help [her] keep [her] job.'" (Id ¶ 11.) Hart allegedly advised Borawski "to `stay away' from Fisco and that Fisco was out to get him." (Id ¶. 12.)

Borawski further alleges that in early 2000 Fisco harassed two other postal employees. (Id ¶ 14.) NALC members sent a petition related to these and other incidents to the NALC president, who then sent a letter to Hart complaining about Fisco. (Id. ¶ 15.) In alleged retaliation, Fisco wrote a memorandum to Hart including information from Borawski's employee medical records ("the memorandum").⁴ (Id ¶16.) The memorandum responded to a letter Fisco had received from Hart and addressed, inter alia, sick leave policy, union matters, Fisco's workplace interactions with Borawski, and matters related to other employees she supervised. (Id, Ex. A.) Fisco stated in this letter:

I have documented [ ] Borowski's behavior to you verbally many times and I do have notes. I have submitted to you as documentation on a grievance a statement from a carrier which states [ ] Borawski is harassing him to sign an untrue statement. I informed you several months ago when [ ] Borawski told me he signed himself into a psychiatric ward a couple of years ago, "because if I didn't I would have killed my ex wife." I recently informed you of [ ] Borawski screaming at me over the phone and threatening to write my ass up. I gave [ ] Borawski an official discussion in this regard and yet he has made inappropriate comments in front of you, which seem to go unnoticed. I conduct myself in a professional manner with all employees.

(Id.)

Fisco allegedly "published" the memorandum by "disseminating [it] to individuals throughout Bound Brook and the region." (Id. ¶ 16.) Borawski contends that "[a]s a result of the publication of this material about a confidential matter, [he] suffered severe humiliation, embarrassment for his family and himself, anxiety concerning his job security and future with USPS and extreme emotional distress." (Id.)

Borawski's attorney wrote a letter to USPS "demanding an apology and repudiation of [Fisco's] actions." (Id ¶ 17.) Steven Kocylowskyi responded on behalf of USPS in a letter dated July 25, 2000 ("7-25-00 letter"). (Id, Ex. B.) The 7-25-00 letter stated that (1) USPS "regret[ted] that the comments were made;" (2) Fisco had accepted an assignment in another post office; and (3) the personal information in the memorandum would neither appear in Borawski's personnel file nor have an adverse impact on his USPS employment. (Id) Fisco was transferred in June 2000 to a post office in Somerville, New Jersey (Id. ¶ 18.)

II. Procedural History

Borawski instituted this action on May 4, 2001. (Compl.) On November 7, 2001, the United States Attorney's Office filed a Certification of Scope of Federal Employment ("11-7-01 Certification") and Notice of Substitution, seeking to substitute the United States for Fisco as defendant. (11-7-01 Certif.; 11-7-01 Notice of Subst.) Borawski filed an objection to the 11-7-01 Certification on November 21, 2001. (11-21-01 Obj.)

The Court entered an order substituting the United States for Fisco, on November 29, 2001. (11-29-01 Order.) However, the Court withdrew the 11-29-01 Order on December 13, 2001, and granted Borawski leave to amend the complaint "for the purpose of clarifying his claim that [Fisco] acted outside the scope of employment in the commission of the acts giving rise to the Complaint," on September 9, 2002. (12-13-01 Order; 9-9-02 Order.)

Borawski filed the amended complaint on December 20, 2002, seeking damages for (1) negligent hiring and retention (Count One); (2) defamation (Count Two); (3) slander per se (Count Three); (4) invasion of privacy (Count Four); (5) intentional infliction of emotional distress (Count Five); and (6) violation of the New Jersey Conscientious Employee Act ("CEPA"), N.J.S.A. §§ 34:19-1 through 8 (Count Six). (Am.Compl.) On January 7, 2002, the United States Attorney's Office filed (1) a second Certification of Scope of Federal Employment ("1-7-03 Certification"); (2) a second Notice of Substitution; and (3) a motion to dismiss the amended complaint. (1-7-03 Certif.; 1-7-03 Notice of Subst.; 1-7-03 Notice of Mot.) The Court received Borawski's opposition to the motion and objection to the 1-7-03 Certification, on February 19, 2003. (PL's Mem.; 2-19-03 Notice of Obj.) We received the federal defendants' reply brief on February 25, 2003 and held oral argument on May 19, 2003. (Defs.'Reply.)

The federal defendants argue that (1) the United States should be substituted for Fisco and all claims against her should be dismissed; (2) the Court lacks subject matter jurisdiction over Borawski's intentional-tort and negligence claims against the Postmaster General and the United States (as substituted for Fisco), because these claims are not cognizable under the Federal Tort Claims Act ("FTCA");⁵ and (3) Borawski fails to state a claim for which relief can be granted under CEPA. (Dels.' Br. in Supp. ("Defs.' Br.").)

DISCUSSION

I. Standards Governing Motion to Dismiss

A. Rule 12(b)(1)

A court addressing a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is not restricted to the face of the pleadings. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.1997). Rather, we may consider declarations or other evidence to resolve factual questions bearing on the jurisdictional issue without converting the motion into one for summary judgment. Id The party that invokes the court's jurisdiction bears the burden of persuasion when the subject matter jurisdiction of the court is challenged. Rudolph v. Adamar of N.J., Inc., 153 F.Supp.2d 528, 533 (D.N.J.2001).

B. Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) does not attack the merits of the case, but merely tests the legal sufficiency of a complaint. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir.1987). A court must accept as true all well-pleaded allegations and view them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985). We may not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78...