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Centeno v. Brennan

United States District Court, S.D. Ohio, Western Division, Dayton

December 29, 2017

JOSE A. CENTENO, Plaintiff,
v.
POST MASTER GENERAL MEGAN J. BRENNAN, et al., Defendants.

          Sharon L. Ovington, Judge

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington, United States Magistrate Judge

         This employment-discrimination case is before the Court upon Defendants' Motion To Substitute The United States As A Party For Individual Defendant Dawn Grilliott (Doc. #34), Plaintiff Jose A. Centeno's Response In Opposition And Affidavit (Doc. #s 39, 42), Defendants' Reply (Doc. # 44), and the record as a whole.

         Centeno alleges in his Second Amended Complaint that during his employment as a letter carrier with the U.S. Postal Service, he suffered eye injuries and illnesses that affected his eyesight. His eye problems required treatment with medicated eye drops that he needed to administer three times during the work day. He requested an accommodation of his periodic need to administer the eye drops. The Postal Service initially accommodated his need.

         Centeno further alleges that in 2012, a new acting Customer Service Manager decided to stop his accommodation. Centeno filed an EEO Complaint and eventually, in September 2013, entered into a settlement agreement with the Postal Service.

         In 2014, according to Centeno, Dawn Grilliott was temporarily assigned to the district office in the position of “labor relations specialist.” (Doc. #27, PageID #381). She knew Centeno because she had once been his local supervisor. She consequently knew about his need for an accommodation of his eye condition.

         Centeno alleges that in late 2014, Grilliott informed him that his accommodation would no longer be honored and his unpaid lunch period would be extended from thirty to sixty minutes. This altered schedule failed to accommodate his medical need to administer his prescription eye drops as instructed by his physician. “After not being permitted to administer his eye drops for approximately fifteen … weeks, Plaintiff lost the ability to read the letters he was responsible for preparing for delivery.” Id. at 382. He was never able to work after August 2015. He eventually used up his annual leave and sick time, and he retired in March 2016. At some point, he lost his vision.

         Count IV of Centeno's Second Amended Complaint claims that Grilliott intentionally inflicted emotional distress upon him. Count IV is the only Count that is presently pertinent.

         Defendants seek to substitute the United States in place of Grilliott on Count IV. They reason that the Westfall Act, 28 U.S.C. § 2679, shields Grilliott from Centeno's claim because she acted within the scope of her employment when she was engaged in the conduct Centeno alleges. Centeno contends that the United States should not be substituted in place of Grilliott because her alleged acts were not within the scope of her employment (for reasons to be explored).

         “Pursuant to the Westfall Act, the United States stands in the shoes of its employees whose negligent or wrongful act[s] in the scope and course of their federal employment cause an injury. The Act effectively ‘shields federal employees from liability for common law torts committed within the scope of employment.” Sullivan v. Shimp, 324 F.3d 397, 399 (6th Cir. 2003) (quotation marks and internal citation omitted); see 28 U.S.C. §§ 1346(b), 2671-80. When a federal employee acts within the scope of her employment, the Westfall Act mandates substitution of the United States as the party defendant. Woods v. McGuire, 954 F.2d 388, 390 (6th Cir. 1992). “[T]he Westfall Act does not immunize federal employees for torts they commit outside the scope of their federal employment….” Roberts v. United States, 191 F. App'x 338, 341 (6th Cir. 2006).

         The issue of whether a federal employee acted within the scope of her employment is one of law, not fact. Sullivan, 324 F.3d at 399. Yet, district courts must resolve the factual disputes “‘necessary to its decision before entering its order.'” Roberts, 191 F. App'x at 342 (quoting Singleton v. United States, 277 F.3d 864, 870 (6th Cir. 2002) (overruled, in part, on other grounds, Hawver v. United States, 808 F.3d 693, 694 (6th Cir. 2015)) (additional citation omitted); see Dolan v. United States, 514 F.3d 587, 593 (6th Cir. 2008).

         The Attorney General, through a United States Attorney, may certify that a federal employee was acting within the scope of her employment at the time of the incidents that spawned the tort claim. See 28 U.S.C. § 2679(d)(2). The United States Attorney's certification is “prima facie evidence that the employee was acting within the scope of employment.Dolan, 514 F.3d at 593 (internal punctuation and citation omitted). Once the certification is presented, “[t]he burden is on the plaintiff to ‘produce evidence that demonstrates that the employee was not acting within the scope of employment.'” Id. (citation omitted). “If plaintiff produces such evidence, the government must then produce evidentiary support for its certification.” Roberts, 191 F. App'x at 342 (6th Cir. 2006) (citing Singleton v, 277 F.3d at 870).

         The United States Attorney for the Southern District of Ohio has certified that Grilliott was acting within the scope of her employment at the time of the incidents alleged in Centeno's Second Amended Complaint. (Doc. #34, PageID #522).

         In response, Centeno filed his own affidavit explaining that he worked as a letter carrier at the Dayton View Branch in Dayton, Ohio. According to his affidavit, Grilliott was, at some point, his direct supervisor. She was “very familiar with the accommodation [he] was provided.” (Doc. #43, PageID #558). In November 2014, Grilliott “was working in labor relations and had no supervisory authority over [Centeno].” Id. at 559. ...


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