The opinion of the court was delivered by: Judge Patricia A. Gaughan
Memorandum of Opinion and Order
This matter is before the Court upon defendant's Motion to Dismiss. For the following reasons, the motion is GRANTED.
Plaintiff, Robert Lockett, filed this Complaint against John E. Potter, Postmaster General. The Complaint alleges the following facts. Plaintiff is an African American and an employee of the United States Postal Service*fn1 (USPS). On August 4, 2005, plaintiff was threatened by a co-worker which caused plaintiff to be disabled and unable to work. Plaintiff filed an Occupational Workers' Compensation claim (OWCP). Defendant discriminated against plaintiff because of prior EEO activity. Defendant made false statements with respect to plaintiff's OWCP claim and, as a result, the claim was denied on March 5, 2006.
On April 26, 2006, plaintiff filed an EEO Complaint of Discrimination against the USPS alleging disability discrimination and retaliation for prior EEO activity. On May 5, 2006, the USPS dismissed the EEO Complaint. (Doc. 12 Exs. 1 and 2)
Plaintiff thereafter filed this Complaint which sets forth three claims. Count One alleges discrimination and retaliation based on disability and prior EEO activity in violation of Title VII. Count Two alleges that defendant's false statements regarding the workers' compensation claim constitute fraud. Count Three alleges intentional infliction of emotional distress.
This matter is now before the Court upon defendant's Motion to Dismiss for lack of subject matter jurisdiction.
Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(1). A motion under this rule asserts that the court lacks subject matter jurisdiction. In Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996), the court stated:
When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. In addition, the district court is empowered to resolve factual disputes when necessary to resolve challenges to subject matter jurisdiction.
Plaintiff does not dispute that this Court lacks subject matter jurisdiction over Counts Two (fraud) and Three (intentional infliction of emotional distress). For the following reasons, this Court lacks subject matter jurisdiction over these claims.
Dismissal of the fraud claim is warranted. The Federal Tort Claims Act (FTCA) "grants a limited waiver of sovereign immunity and allows tort claims against the United States in the same manner and to the same extent as a private individual under like circumstances." Chomic v. U.S., 377 F.3d 607, 609 (6th Cir. 2004) (citing 28 U.S.C. § 2674). Nonetheless, "courts have consistently held that fraud claims against the government are ...