United States District Court, S.D. Ohio, Western Division
JOSE A. CENTENO, Plaintiff,
POSTMASTER GENERAL MEGAN J. BRENNAN, et al., Defendants.
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
H. RICE, UNITED STATES DISTRICT JUDGE
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.
Factual and Procedural Background
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. The agency
initially granted Plaintiff's requested accommodation.
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. 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,
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.
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.
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
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
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.
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.
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.
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.
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.
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).
Defendants' Motion to Substitute the United States as a
Party for Individual Defendant Dawn Grilliott (Doc.
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. §
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.
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.
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.
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).
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).
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).
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).
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.
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:
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.
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.
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 ...