Owens v. United States, Case No. 4:18-CV-01721-NCC

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
Writing for the CourtNOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE
PartiesJAMES OWENS, Plaintiff, v. UNITED STATES OF AMERICA and BENJAMIN HARRIS, Defendants.
Decision Date30 June 2020
Docket NumberCase No. 4:18-CV-01721-NCC

JAMES OWENS, Plaintiff,
v.
UNITED STATES OF AMERICA and BENJAMIN HARRIS, Defendants.

Case No. 4:18-CV-01721-NCC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

June 30, 2020


MEMORANDUM AND ORDER

This matter is before the Court on Defendant Benjamin Harris' Petition for Certification of Scope of Employment (Doc. 24) and Defendant United States of America's interrelated Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 29). The Petition and the Motion are fully briefed and ready for disposition.1 The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 13). For the following reasons, Defendant Benjamin Harris' Petition will be DENIED, and Defendant United States of America's Motion will be GRANTED.

I. Background

On November 9, 2018, Plaintiff James Owens ("Owens" or "Plaintiff") filed his First Amended Complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., against Defendant United States of America ("United States") (Count I) and for negligence under Missouri state law against Defendant Benjamin Harris ("Harris") (Count II) alleging Harris, a United States Postal Service ("USPS") employee, injured Owens in a motor vehicle accident

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while driving a USPS vehicle on June 1, 2016 (Doc. 5). Specifically, the record shows Harris was employed as a City Carrier for the USPS and was assigned 63028 City Route 02 (the "Postal Route"), a mixed route with commercial and residential addresses requiring driving, parking, and walking (Doc. 7 at ¶5; Deposition of Benjamin Harris at 10:16-21, Docs. 28-1, 30-1, 32-10, 34-10 (hereinafter "Harris Depo."); Deposition of Richard Finch at 137:12-138:6, Docs. 25-1, 28-2, 30-2, 32-1, 34-1 (hereinafter "Finch Depo.")). At 1:15 p.m., Harris, in the operation of his postal vehicle, was involved in an accident at 501 Maple Street (PS Form 1769/301 Accident Report, Docs. 25-6, 32-6, 34-6 (hereinafter "Accident Report")).

At the time of the accident, the following was the relevant practice and procedure of the USPS. The USPS designs delivery routes such that the workload for each route fills an 8-hour workday for the postal carrier (or "carrier") assigned to the route and that there is no excessive undertime or overtime on the route, as the USPS strives for "an equitable and feasible division of the work among all of the carrier routes assigned to a [post] office" (USPS Handbook M-39: Management of Delivery Services, at 242.122, 243.22, Docs. 28-3, 30-3 (hereinafter "USPS Handbook M-39")).2 Each route is also analyzed at least once a year to ensure that it remains as close to an 8-hour workday for the assigned carrier as possible (USPS Handbook M-41: City Delivery Carriers Duties and Responsibilities, at 912, 918.1, Docs. 28-4, 30-4 (hereinafter "USPS Handbook M-41")). The analysis involves a management official accompanying a carrier on the carrier's assigned route and recording data about when, among other things, the

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carrier left the post office, arrived at the first delivery point, arrived at each address on the route, took 10-minute breaks, took a lunch, went to the restroom, and returned to the post office after all mail was delivered (See USPS Inspection of Letter Carrier Route, B.S. Harris, September 23, 2015, Docs. 28-8, 30-8, 32-11, 34-11). Each route has a prescribed delivery order (USPS Handbook M-39 at 125.3). Specifically, "[c]arriers are required to follow their authorized lines of travel at all times" (Id.). Carriers are required to sort their assigned mail in accordance with the delivery order before they leave the Post Office in the morning, and then they are required to deliver that mail in that prescribed order unless authorized to deliver differently (USPS Handbook M-39 at 125.1, 125.25, 125.3; Finch Depo. at 13:22-15:13). Carriers may not loiter or stop to converse unnecessarily on their route (USPS Handbook M-41 at 112.28). Additionally, carriers are instructed, "Do not deviate from your route for meals or other purposes unless authorized by your manager or if local policies concerning handling out of sequence mail permit minor deviations" (USPS Handbook M-41 at 131.31). Carriers are "required to follow their authorized lines of travel at all times. On motorized routes this includes travel to and from: the route, authorized lunch locations, break locations, refueling locations, collection boxes, and on the route" (USPS Handbook M-39 at 125.3). Further, carriers are prohibited from using their assigned postal vehicles for personal use (USPS Handbook M-39 at 125.3; USPS Handbook M-41 at 112.28, 131.31, 131.32; Finch Depo. at 159:2-7).

The USPS break policy is as follows. Carriers are allowed two types of work breaks each day in addition their 30-minute lunch break (Finch Depo. at 89:2-91:3). First, they are allowed unlimited "comfort breaks" (Finch Depo. at 89:17-90:1). The USPS does not have a formal or

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written definition of the term "comfort break." At his deposition, Finch explained that "a comfort stop includes using the restroom or getting a drink to cool down. Comfort is what it's for" (Finch Depo. at 89:14-16; 90:11-15). "Reasonable comfort stops will not be deducted from the carrier's actual time" (USPS Handbook M-19 at 242.341). Second, City Carriers are permitted two 10-minute "personal breaks" per day. The two 10-minute breaks, if taken on the street, must be taken separate from each other and separate from the lunch period (Id.). Each City Carrier is required to designate two locations they would like to use for such breaks (Finch Depo. at 92:15-19). Owens' residence, 501 Maple Street, was an authorized break location for Harris (Finch Depo. at 94:15-23; Route Base Information, Docs. 25-9, 28-5, 30-5, 32-9, 34-9). The USPS does not require the personal breaks to be taken at any particular time of day (Finch Depo. at 94:23-95:8). Carriers record on PS Form 1564-A, Delivery Instructions, the approximate location of their breaks (USPS Handbook M-39 at 242.341).

Harris testified that that the practice at the Festus Post Office did not align with the USPS Handbooks. Specifically, Harris stated that postal employees used their personal breaks for a variety of personal matters, including making trips to Walmart, going home, and going tanning (Harris Depo. at 54:14-24). In fact, during a route supervision, Harris was allowed to take his two ten-minute breaks in non-authorized break locations and was not reprimanded for his choice of locations (Harris Depo. at 91:5-92:24; Notice of Proposed Removal, Docs. 25-2, 25-8, 28-7, 30-7, 32-2, 32-8, 34-2 (hereinafter "Notice of Proposed Removal")). Finch testified at his deposition that, the Carriers will "move [their break] a little bit based on how fast they are, so they might move a location of where they're taking their break, but they don't go back to where they already delivered. We don't allow deviation to go back to where you already delivered"

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and "[I]t's as you deliver. You can't just go back to it as a break if you've already delivered there. That's deviating" (Finch Depo. at 128:5-7, 135:2-12). Finch further testified that that he "[n]ever disciplined an employee for taking a break at a non-assigned break location" or going over their two ten-minute breaks in a day (Finch Depo. at 96:14-20, 124:19-125:2, 135:13-20; Harris Depo. 89:8-11).

On a normal day, Harris would be on the street delivering mail between 8:00 and 9:00 a.m. depending on the amount of mail assigned to him for delivery (Harris Depo. at 16:23-17:1). On Saturdays, Harris would take all the mail to Crystal City for their P.O. Boxes as "they want their mail at 8:30, so sometimes I - 8:20, 8:25 so I can get them their mail on time" (Harris Depo. at 17:2-6). Harris would also sometimes change the order of delivering mail on his Postal Route because, if he got out early, some of the business were not yet open so he would deliver the residential mail first (Harris Depo. at 17:24-18:5). When this occurred, Harris sought authorization from his supervisor if he intended on backtracking on his Postal Route because "I did it to cover me. That way there's no questions asked" (Harris Depo. at 19:10-20:4).

The USPS uses GPS technology to track movements of its carriers. The GPS Data for Harris on June 1, 2016, reveals the following. Harris arrived at 406 S. Adams Street, his first delivery location, at approximately 8:26 a.m. At approximately 8:51 a.m., Harris delivered mail to Owens at 501 Maple Street, Apt. A. Harris continued delivering mail along his Postal Route including the following specifically relevant events.

Time
Location/Activity
10:07 a.m. - 10:17 a.m.
Bathroom break.
10:32 a.m. - 10:43 a.m.
Vehicle was parked while Harris rearranged
packages in his van for future delivery.
11:10 a.m. - 11:25 a.m.
Harris took a break at Mueller Street and

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Schumer Street ("Third Event").
12:50 p.m. - 1:00 p.m.
Harris completed a delivery to 204 Briar Ridge
as part of his normal route and then drove to a
nearby K-Mart to pick up some items ("Fourth
Event").
1:00 p.m. - 1:09 p.m.
Harris drove from the K-Mart to a Mobil gas
station/convenience store and bought a drink
("Fifth Event").
1:09 p.m. - 1:15 p.m.
Harris stopped at 501 Maple Street ("Sixth
Event").
1:15 p.m.
The accident occurred.

(GPS Data for B. Harris, June 1, 2016, Docs. 25-3, 28-9, 30-9, 32-3, 34-3 (hereinafter "GPS Data"); Notice of Proposed Removal).

The parties dispute the characterizations of the Third, Fourth, Fifth, and Sixth Events. The following are the facts regarding these specific events. At 11:10 a.m., Harris took a 15-minute break at Mueller Street and Schumer Street (the "Third Event") (Notice of Proposed Removal at 3). As a part of the accident investigation, Finch asked Harris to explain his stationary events including this one. Finch's recollection was that...

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