United States District Court, S.D. Ohio, Western Division, Dayton
JOSE A. CENTENO, Plaintiff,
POST MASTER GENERAL MEGAN J. BRENNAN, et al., Defendants.
L. Ovington, Judge
REPORT AND RECOMMENDATIONS 
L. Ovington, United States Magistrate Judge
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.
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.
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.
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.
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.
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.
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).
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).
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
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).
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,
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.