Figueroa v. U.S. Postal Service
| Decision Date | 21 March 2006 |
| Docket Number | No. 1:05 CV 999.,1:05 CV 999. |
| Citation | 422 F.Supp.2d 866 |
| Parties | Nancy FIGUEROA, Plaintiff, v. U.S. POSTAL SERVICE, John E. Potter, Postmaster General, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Howard V. Mishler, Law Office of Howard V. Mishler, Westlake, OH, for Plaintiff.
Kathleen Lucille Midian, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for Defendants.
This case involves a U.S. Postal Service employee's allegations of discriminatory and tortious workplace conduct on the part of her supervisors. The parties have filed the following dispositive and non-dispositive motions which address the state and federal claims alleged in the Second Amended Complaint filed on October 24, 2005.1 ECF No. 16.
First, Defendants filed a Notice of Substitution of the United States of America in place of the individual defendants and Plaintiff's supervisors (Defendants Susan Taylor, Catherine Thomas and Barbara Urszeni) with respect to Plaintiff's tort claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1) and 2671-2680. ECF No. 18. The Notice contains a certification from the United States Attorney that the individual defendants were acting within the scope of their employment for FTCA purposes. Id., Attach. Along with the Notice, Defendants filed a Motion to Dismiss Substituted Defendant United States of America, asking the Court to dismiss the FTCA claims against the Government for failure to exhaust administrative remedies, insufficient service and on immunity grounds ("Motion to Dismiss the Tort Claims") (ECF No. 19).
Defendants also filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment etc., asking the Court to dismiss the remaining federal claims for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service and failure to state claim ("Motion to Dismiss the Federal Claims") (ECF No. 20). In the alternative, the Postal Service asks the Court to grant summary judgment in its favor because there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Id.
Thereafter, Plaintiff filed a Motion for Leave to File Affidavits and/or Declarations and Take the Depositions of the Individual Defendants in Support of Request for Judicial Review of the United States Attorney's Certification Pursuant to 28 U.S.C. §§ 2679(b), (d) (ECF No. 28). Plaintiff also filed a Motion to Stay and/or Otherwise Defer Ruling upon [Defendants' dispositive motions], asking the Court to defer its rulings until such time as Plaintiff can conduct certain discovery (ECF No. 39).
The Court has reviewed the pending motions and the entire record, and is prepared to issue its rulings.
On April 18, 2005, Plaintiff Nancy Figueroa, a 25-year employee of the United States Postal Service ("Postal Service"), filed a complaint against James Petro, Ohio Attorney General; the Postal Service, John E. Potter, Postmaster General; Alberto Gonzales, U.S. Attorney General; and Catherine Thomas, Susan Taylor and Barbara J. Urszeni. ECF No. 1 ("Compl."). Plaintiff is presently a Level 6 F.T. Clerk/GLDC who spends part of her work day at the Lorain (Ohio) Carrier Annex and the rest of her day at an off-site location. Compl. § 22; Second Am. Compl. ¶ 42. Defendant Susan Taylor is the Post Master at the Annex, and Defendants Barbara Urszeni and Catherine Thomas are her supervisors at the Annex. Compl. ¶¶ 14-16; Second Am. Compl. ¶¶ 16-18.
In her complaint, Plaintiff, a Mexican female over the age of 40, alleged generally that Defendants discriminated against and harassed her based on her religion, national origin, race, gender and age in violation of state and federal law. Compl. ¶¶ 1-4. Plaintiff claimed that Defendants retaliated against her for filing EEO charges, and that they violated the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2611-2619, and the Federal Employee Compensation Act ("FE CA"), 5 U.S.C. §§ 8101-8193. Compl. ¶ 7. She also charged the individual defendants with the torts of intentional infliction of mental distress, intentional interference with employment and harassment, all in violation of the FTCA. Compl. ¶ 6.
On May 6, 2005, Plaintiff filed an amended complaint against the Postal Service, Thomas, Taylor and Urszeni. ECF No. 3. The Postal Service filed a notice of substitution of the United States of America as party defendant with respect to Plaintiffs tort claims, and dispositive motions with regard to all claims. ECF Nos. 5, 6, 7. On October 4, 2005, Plaintiff filed a motion for leave to file a second amended complaint. ECF No. 11. The Court granted the motion for leave, and denied as moot the other motions. See ECF No. 14.
On October 24, 2005, Plaintiff filed an amended complaint against the Postal Service, the United States Attorney General, Thomas, Taylor and Urszeni. ECF No. 16 ("Second Am. Compl."). This Second Amended Complaint alleges the following claims. The First Cause of Action alleges age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 626-634, based upon Administrative Case Nos. 4C-440-0116-05 and 4C-440-0268-04. Second Am. Compl. ¶¶ 33-55. The Second Cause of Action alleges national origin discrimination in violation of Title VII based upon Administrative Case No. 4C-440-0268-04. Id. ¶¶ 57-68. The Third Cause of Action alleges retaliation under Title VII based upon Administrative Code Nos. 4C-440-0176; 4C-440-0268-04; and 4C-440-0116-05. Id. ¶¶ 70-78. The Fourth Cause of Action alleges claims of intentional infliction of mental distress, intentional interference with employment and harassment against Defendants Thomas, Taylor and Urszeni. Second Am. Compl. ¶¶ 79-95. The Fifth Cause of Action alleges a violation of the FECA based on an injury that occurred in the parking lot of the Annex on February 9, 2005. Id. ¶¶ 97-102. The Sixth Cause of Action is a claim against the individual defendants for intentional interference with employment. Id. ¶¶ 103-113. The Seventh Cause of Action alleges interference with Plaintiffs FMLA rights and retaliation based on her exercise of those rights. Id. ¶¶ 115-124.
On November 7, 2005, the United States filed a Notice of Substitution of the United States of America (the "Government") for individual defendants Thomas, Taylor and Urszeni for purposes of the FTCA tort claims. ECF No. 18. Attached to the notice was a document signed by United States Attorney Gregory A. White certifying that he read the complaint and determined that Thomas, Taylor and Urszeni were acting within the scope of their employment with the Postal Service with respect to the facts alleged in the complaint. Id., Attach.
That same day, Defendants filed the pending Motion to Dismiss the Tort Claims. ECF No. 19, and the pending Motion to Dismiss the Federal Claims, ECF No. 20.
In its Motion to Dismiss the Tort Claims, the Government argues, among other things, that the tort claims should be dismissed for lack of subject matter jurisdiction because Plaintiff has failed to exhaust her administrative remedies. ECF No. 19. Plaintiff counters that she timely filed her administrative claims and, in any event, exhaustion is futile. Because of the Court's conclusion that it lacks subject matter jurisdiction over the torts articulated in the Fourth and Sixth Causes of Action, it need not address the Government's other arguments.2
Motions to dismiss for lack of subject matter jurisdiction fall under one of two general categories, facial attacks or factual attacks. Fed.R.Civ.P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994); City of Olmstead Falls v. USEPA, 266 F.Supp.2d 718, 721-22 (N.D.Ohio 2003). A facial attack challenges the sufficiency of the pleading itself. Id. In reviewing such motion, the court must take the material allegations of the pleading as true and construe them in the light most favorable to the nonmoving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). A factual attack, on the other hand, is a challenge to the factual existence of subject matter jurisdiction. Id. No presumption of truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). The Government's Rule 12(b)(1) Motion to Dismiss the Tort Claims is a facial attack on the Court's subject matter jurisdiction. ECF No. 19, at 4.
"Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the "West-fall Act"), the United States may be substituted in a civil action for money damages brought against a federal employee who is alleged to have committed a common law tort while acting within the scope of his or her employment." Gilbar v. U.S., 229 F.3d 1151, 2000 WL 1206538 at *2 n. 1 (6th Cir.2000) (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1142 (6th Cir.1996), in turn citing Arbour v. Jenkins, 903 F.2d 416, 420 (6th Cir. 1990)). The Westfall Act provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.
28 U.S.C. § 2679(d)(1); RMI Titanium, 78 F.3d at 1143. The Attorney General has delegated to the United States...
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Governmental documents
...numerous disclaimers of accuracy precluded the necessary finding that the print-out was reliable. 17 Figueroa v. U.S. Postal Service , 422 F.Supp.2d 866 (N.D. Ohio, 2006). In an action by a female U.S. Postal Service employee alleging age discrimination and other tortious workplace miscondu......
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Governmental Documents
...numerous disclaimers of accuracy precluded the necessary finding that the print-out was reliable. 14 Figueroa v. U.S. Postal Service , 422 F.Supp.2d 866 (N.D. Ohio, 2006). In an action by a female U.S. Postal Service employee alleging age discrimination and other tortious workplace miscondu......
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Governmental Documents
...numerous disclaimers of accuracy precluded the necessary finding that the print-out was reliable. 16 Figueroa v. U.S. Postal Service , 422 F.Supp.2d 866 (N.D. Ohio, 2006). In an action by a female U.S. Postal Service employee alleging age discrimination and other tortious workplace miscondu......
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Governmental Documents
...numerous disclaimers of accuracy precluded the necessary finding that the print-out was reliable. 14 Figueroa v. U.S. Postal Service , 422 F.Supp.2d 866 (N.D. Ohio, 2006). In an action by a female U.S. Postal Service employee alleging age discrimination and other tortious workplace miscondu......