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Centeno v. Brennan

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

March 26, 2018

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

         DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #53) ON DEFENDANTS' MOTION TO SUBSTITUTE THE UNITED STATES AS A PARTY FOR INDIVIDUAL DEFENDANT DAWN GRILLIOTT; OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DOC. #57); SUSTAINING DEFENDANTS' MOTION TO SUBSTITUTE THE UNITED STATES AS A PARTY FOR INDIVIDUAL DEFENDANT DAWN GRILLIOTT (DOC. #34); DISMISSING ALL INDIVIDUAL-CAPACITY CLAIMS AGAINST DEFENDANT DAWN GRILLIOTT WITH PREJUDICE; DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #54) ON DEFENDANTS' THIRD MOTION TO DISMISS; OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DOC. #58); SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS' THIRD MOTION TO DISMISS (DOC. #33); DISMISSING WITH PREJUDICE PRE-SETTLEMENT CLAIMS OF DISCRIMINATION AND RETALIATION; DISMISSING WITHOUT PREJUDICE POST-SETTLEMENT CLAIMS OF DISCRIMINATION AND RETALIATION AND REMANDING THEM TO THE UNITED STATES POSTAL SERVICE; ADMINISTRATIVELY PROCESSING CASE PENDING EXHAUSTION OF ADMINISTRATIVE REMEDIES

          WALTER H. RICE, UNITED STATES DISTRICT JUDGE

         Plaintiff Jose Centeno filed suit against Megan J. Brennan, Postmaster General of the United States, Dawn Grilliott, and the United States of America. His Second Amended Complaint, Doc. #27, asserts claims of: (I) disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.; (II) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; (III) personal injury under the Federal Tort Claims Act, 28 U.S.C. § 2671; and (IV) intentional infliction of emotional distress. This matter is currently before the Court on two Reports and Recommendations filed by United States Magistrate Judge Sharon L. Ovington: (1) a December 29, 2017, Report and Recommendations, Doc. #53, recommending that the Court sustain Defendants' Motion to Substitute the United States as a Party for Individual Defendant Dawn Grilliott, Doc. #34; and (2) a January 9, 2018, Report and Recommendations, Doc. #54, recommending that the Court sustain in part and overrule in part Defendants' Third Motion to Dismiss, Doc. #33. Plaintiff has filed Objections to both Reports and Recommendations. Docs. ##57, 58. Defendants have filed Responses in Opposition to Plaintiff's Objections. Doc. ##59, 60.[1]

         I. Factual and Procedural Background

         According to the Second Amended Complaint, Plaintiff previously worked as a letter carrier for the United States Postal Service ("USPS" or "the agency"). As a result of injuries and illness, he suffered from detached retinas and glaucoma in both eyes. These conditions required him to administer medicated eye drops up to three times per work day. Doc. #27, PageID#379. After each application of eye drops, he was required to keep his eyes closed for up to ten minutes. He sought an accommodation for his disability. In order to properly administer the eye drops throughout the day, he asked the agency to allow him to take paid comfort breaks in addition to his two regularly-scheduled 10-minute breaks and his unpaid 30- minute lunch break.[2] The agency initially granted Plaintiff's requested accommodation.

         However, in the summer of 2012, the agency discontinued this accommodation. On October 5, 2012, Plaintiff filed an internal Equal Employment Opportunity ("EEO") complaint, alleging discrimination and retaliation. Doc. #33-1, PageID#472.[3] A Settlement Agreement, dated September 18, 2013, allowed him to once again take the comfort breaks necessary to properly administer his eye drops. Doc. #33-3, PageID##489-95. That Settlement Agreement provided, in part, as follows:

Should a dispute arise regarding the implementation of this Agreement, it is agreed that the Complainant will not file a new administrative complaint or petition for enforcement until 15 days after the Complainant has notified the Agency that Complainant believes this Agreement has been breached, by providing the then Manager of Human Resources for the Postal Service Cincinnati District (or its successor) with a written statement which: (1) states that Complainant believes this Agreement has been breached; and (2) sets forth an explanation of how Complainant believes this Agreement has been breached. It is the intent of this paragraph to allow the Postal Service a reasonable time to, if possible, correct any real or perceived difficulties arising from the implementation of this Agreement.

Id. at PageID##494-95.

         In the spring of 2014, the agency again denied Plaintiff the agreed-upon accommodation. After Plaintiff's counsel contacted the District Human Resources Manager about this breach of the Settlement Agreement, the agency agreed to continue honoring the agreed-upon accommodation.

         Defendant Dawn Grilliott had been Plaintiff's local supervisor at the Dayton View Post Office. In that capacity, she was aware of Plaintiff's EEO complaint and the Settlement Agreement. Doc. #27, PageID#381. Plaintiff alleges that, in 2014, Grilliott was temporarily assigned to the district office as an Acting Labor Relations Specialist. In November of 2014, Grilliott informed him that the agreed-upon accommodation would no longer be honored, and that his unpaid lunch period would instead be extended from 30 minutes to 60 minutes. Id.

         Given that this change in schedule would prevent Plaintiff from being able to administer his eye drops as prescribed, he considered this to be a breach of the Settlement Agreement and so informed the agency. He continued to take the previously-agreed-upon comfort breaks while awaiting a response. Id.

         Early in 2015, Grilliott returned to the Dayton View Post Office as Plaintiff's Acting Station Manager and allegedly began harassing him about the accommodation. At the end of April of 2015, Plaintiff noticed that, as Grilliott had previously indicated, his unpaid lunch period was now being extended from 30 minutes to 60 minutes. Id. On April 28, 2015, Plaintiff's counsel sent a letter to the agency's Human Resources Manager concerning the breach of the Settlement Agreement. As required by the Settlement Agreement, he gave the agency 15 days to address the violation and comply with the settlement terms. Doc. #33-3, PageID#496. He received no response.

         Accordingly, on May 13, 2015, Plaintiff requested EEO counseling on these new complaints of discrimination and retaliation by Dawn Grilliott. Doc. #27-3, PageID##398-99. On July 2, 2015, Plaintiff's attorney notified the agency's EEO Compliance Manager of the alleged breach of the Settlement Agreement and demanded specific performance within 30 days. Doc. #33-3, PageID#497. On July 13, 2015, the agency informed Plaintiff that his new complaints would be processed as a breach allegation, not as a new counseling request. Id. at PageID##498-501. The agency found his complaint to be untimely filed because, although he was notified of the schedule change in November of 2014, he did not notify the agency of the alleged breach until May 13, 2015. In addition, the agency denied that its actions constituted a breach of the Settlement Agreement; it denied that there was ever an agreement authorizing him to be paid for an additional 30 minutes per day. Id.

         On August 5, 2015, Plaintiff appealed the agency's decision to the EEOC's Office of Federal Operations ("OFO"), asking for reinstatement of his underlying claims if a breach were found. Doc. #33-2, PageID#476; Doc. #33-3, PageID#487. He acknowledged that he was told of the schedule change in November of 2014, but noted that the change was not implemented until April 27, 2015, rendering timely his notification to the agency on May 13, 2015. He further argued that the Settlement Agreement specifically provided that he could use comfort breaks "as he is currently taking them, " i.e., up to three 10-minute comfort breaks per day in addition to his regularly scheduled breaks and lunch. He argued that any overtime hours were attributable not to the accommodation, but to the volume of mail on a given day. Doc. #33-3, PageID##485-87.

         While the appeal to the OFO was pending, Plaintiff was denied the opportunity to take comfort breaks, and could not administer his eye drops as prescribed. Plaintiff alleges that, as a result, he lost his ability to read the mail and was unable to work after August 15, 2015. He took annual leave and sick leave for several months. Doc. #27, PageID#382.

         In December of 2015, the OFO found that Plaintiff's complaint was, in fact, timely filed, and that the agency had breached the Settlement Agreement. Doc. #27-4, PageID##406-13. Although Plaintiff had requested reinstatement of his underlying claims, the OFO instead ordered specific performance of the Settlement Agreement, and ordered the agency to verify that it had cured the breach. The OFO also notified Plaintiff of his right to file a civil action within 90 days. Id. On January 29, 2016, the agency issued its final decision, certifying its compliance with the OFO's December 2015 mandate. Plaintiff was told that, upon his return to work, he would again be accommodated as previously agreed. Id. at PageID##414-15.

         By that time, however, the agency's compliance with the terms of the Settlement Agreement was of no use to Plaintiff. Given that he could no longer work, he no longer needed the accommodation. Plaintiff's loss of sight was permanent and he filed for retirement in January of 2016. Doc. #27, PageID#382. Plaintiff filed suit on March 11, 2016. His Second Amended Complaint asserts claims of disability discrimination and retaliation against Megan Brennan, Postmaster General (Counts I and II). It also asserts a personal injury claim under the Federal Tort Claims Act against the United States of America (Count III), and an intentional infliction of emotional distress claim against Dawn Grilliott (Count IV).

         II. Defendants' Motion to Substitute the United States as a Party for Individual Defendant Dawn Grilliott (Doc. #34)

         With respect to Count IV, the intentional infliction of emotional distress claim that was asserted against Dawn Grilliott, Defendants filed a Motion to Substitute the United States as a Party for Individual Defendant Dawn Grilliott. Doc. #34. Defendants argue that, because Count IV arises from decisions Grilliott made in her capacity as an employee of the USPS, and within the scope of her employment, she is immune from personal liability under the Westfall Act, 28 U.S.C. § 2679(b)(1).

         The Westfall Act provides that the exclusive remedy for a common law tort committed by a federal employee in the scope of his or her employment is an action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). See 28 U.S.C. § 2679(b)(1). See Sullivan v. Shimp, 324 F.3d 397, 399 (6th Cir. 2003) (noting that the Westfall Act "shields federal employees from liability for common law torts committed within the scope of their employment.") (quoting Henson v. Nat'l Aeronautics & Space Admin., 14 F.3d 1143, 1147 (6th Cir. 1994)). Accordingly, Defendants ask that the United States be substituted as a party for Dawn Grilliott, and that Plaintiff's claim against her be dismissed.

         After Defendants' motion was fully briefed, United States Magistrate Judge Sharon Ovington issued a Report and Recommendations, Doc. #53, recommending that the Court sustain the motion, and substitute the United States as the party defendant on Count IV of the Second Amended Complaint. Plaintiff has filed Objections, Doc. #57, to the Report and Recommendations. He contends that Magistrate Judge Ovington erred in finding that Grilliott was acting within the scope of her employment as a Labor Relations Supervisor when she discontinued his agreed-upon accommodation and extended his unpaid lunch hour in November of 2014.

         Because Magistrate Judge Ovington's recommendations are dispositive of the individual capacity claims against Dawn Grilliott, the Court must review de novo those parts of the Report and Recommendations that have been properly objected to. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Having done so, the Court concludes that Magistrate Judge Ovington properly found that, because Dawn Grilliott was acting in the course and scope of her employment when the events giving rise to Plaintiff's claim took place, the Westfall Act precludes Plaintiff's claim against Grilliott in her individual capacity.

         Attached to Defendants' motion is a Certification of Scope of Employment, signed by United States Attorney Benjamin Glassman, indicating that Grilliott was acting within the scope of her employment as an employee of the USPS at the time of the events in question. Doc. #34-2, PageID#522. The Westfall Act provides that:

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).

         Nevertheless, in Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995), the Supreme Court held that an Attorney General's certification that an employee was acting in the scope of his or her employment does not conclusively establish that substitution of the United States as a defendant is proper. The certification merely provides prima facie evidence that the employee was acting within the scope of his or her employment. The plaintiff may challenge the certification by producing evidence showing that the employee was not acting in the scope of his or her employment. "If the plaintiff produces such evidence, the government must then produce evidentiary support for its certification." Singleton v. United States, 277 F.3d 864, 870-71 (6th Cir. 2002).

         As Magistrate Judge Ovington explained, the question of whether an individual is acting in the scope of his or her employment is one of law, and is to be determined by the law of the state where the conduct occurred. Sullivan, 324 F.3d at 399; RMI Titanium Co. v. Westinghouse Bee. Corp., 78 F.3d 1125, 1143 (6th Cir. 1996). Nevertheless, in some cases, the court may need to resolve factual issues, and perhaps even hold an evidentiary hearing, prior to making that legal determination. Dolan v. United States, 514 F.3d 587, 593 (6th Cir. 2008).

         Under Ohio law, an employee acts in the scope of his or her employment if the conduct at issue: "(1) is of the kind which she is employed to perform; (2) occurs substantially within the authorized limits of time and space; and (3) is actuated, at least in part, by a purpose to serve the employer." Allstate Ins. Co. v. Quick, 254 F.Supp.2d 706, 711 (S.D. Ohio 2002). The Supreme Court of Ohio has held that an employee acts within the scope of his or her employment "when the act can fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the service to be rendered, or a natural, direct, and logical result of it." Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St. 2d 271, 278, 344 N.E.2d 334, 339 (1976). An act is not considered to be outside the scope of employment unless it "is so divergent that its very character severs the relationship of employer and employee." Osborne v. Lyles, 63 Ohio St.3d 326, 330, 587 N.E.2d 825, 829 (1992).

         In response to the Attorney General's certification, Plaintiff submitted only his own affidavit. He states that when Dawn Grilliott came to Dayton View Branch in November of 2014, in her capacity as Acting Labor Relations Specialist, she had no supervisory authority over him. She nevertheless informed him that the previously-agreed-upon accommodation would no longer be honored and that his unpaid lunch break would be extended by 30 minutes. According to Plaintiff, in his nearly 20 years as a USPS employee, he has never seen a labor relations employee "come to a station and give orders to a letter carrier or change their hours." Doc. #43, PageID#559.

         Magistrate Judge Ovington found that Plaintiff's affidavit was insufficient to demonstrate that Grilliott was acting outside the scope of her employment as an Acting Labor Relations Specialist, and that Grilliott's decision to change Plaintiff's work schedule was an "ordinary and natural incident" of Grilliott's position. The job description for a USPS Labor Relations Specialist provides, in relevant part, as follows:

FUNCTIONAL PURPOSE:

Resolves complex districtwide labor relations and equal employment opportunity (EEO) problems affecting arbitration, grievances, contract administration, and labor relations practices and procedures.

DUTIES AND RESPONSIBILITIES:1. Analyzes complex labor relations problems associated with local implementation, negotiations, and contract administration; develops data and supporting materials for use in grievance and arbitration cases and local negotiations.

# * *

3. Represents the Postal Service in arbitration and EEO hearings, and Merit System Protection Board cases.

4. Provides advice, counsel, and assistance to local processing and distribution, customer services, and post office managers on labor relations issues and procedures affecting employees covered by labor agreements, including the negotiation of local memorandums of understanding, explaining provisions of labor agreements, and making settlements on grievances.

* * *

8. Provides program oversight and technical advice and guidance to other employees regarding EEO policies, processes, procedures, and systems.

Doc. #34-1, PageID#518.

         Magistrate Judge Ovington found that, because Plaintiff's agreed-upon accommodation involved an EEO matter, Grilliott's actions fell within the scope of these job duties. The fact that Plaintiff had never personally observed a Labor Relations Specialist modify the hours of an individual employee does not change this result. Moreover, there was nothing to indicate that Grilliott's decision was based on her own "independent self-serving acts." Magistrate Judge Ovington concluded that, even assuming that Grilliott overstepped her job duties, the challenged decision was not so divergent that its very character effectively severed the employer-employee relationship. Doc. #53, PageID#607.

         Plaintiff's Objections to the Report and Recommendations are two-fold. First, he notes that, as a basis for her finding that Grilliott was acting in the scope of her employment, Magistrate Judge Ovington cited two job duties of a Labor Relations Specialist: (1) resolving "complex district wide labor relations and equal employment opportunity (EEO) problems affecting arbitration, grievances, contract administration, and labor relations practices and procedures"; and (2) providing "program oversight and technical guidance and advice to other employees regarding EEO policies, processes, procedures, and systems." Plaintiff contends that neither is applicable given that his requested accommodation was not a "complex districtwide" problem; nor was it related to "program oversight and technical advice and guidance." Plaintiff maintains that his affidavit, stating that Grilliott had no direct ...


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