Dubee v. Henderson

56 F.Supp.2d 430

Alberta DUBEE v. William HENDERSON.

No. 2:98 cv 288.

United States District Court, D. Vermont.

June 29, 1999.

John Christopher Page, Paterson & Walke, P.C., Montpelier, VT, David Norden Cole, Law Office of David N. Cole, Hanover, NH, for Alberta Dubee, plaintiff.

Carol L. Shea, AUSA, Office of the United States Attorney, Burlington, VT, for William J. Henderson, as Postmaster General of the United States Postal Service, defendant.

OPINION AND ORDER

SESSIONS, District Judge.

Plaintiff Alberta Dubee ("Dubee") filed this lawsuit on August 19, 1998 against William Henderson ("Henderson"), United States Postmaster General, alleging various claims arising out of her employment with the U.S. Postal Service. Henderson filed a Motion to Dismiss (paper 5) pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons cited below, the Court hereby DENIES the Motion to Dismiss.

I. Factual Background

Dubee has been employed with the U.S. Postal Service since 1985. She began her career as a letter carrier. In 1992, she filed an administrative claim against the postal service alleging she had been the victim of sexual harassment by another worker. She suffered from post-traumatic stress disorder ("PTSD") as a consequence of the harassment. The postal service settled her claim in February 1993. Under the terms of that settlement, she was promoted to postmaster in Websterville, Vermont and received medical and lost wages benefits under the Federal Employees Compensation Act ("FECA"), 5 U.S.C. §§ 8101-8193. Soon after Dubee undertook the postmaster position in Websterville, she claims she was subjected to retaliatory harassment by other employees. She also alleges her supervisor, Paul Jewett ("Jewett"), did nothing to stop the harassment. She suffered recurrent symptoms of PTSD and fibromyalgia. She sought and received FECA benefits from November 27, 1996 to the present. She has been unable to work for the past two years.

As a result of the retaliatory harassment alleged and the recurrence of PTSD, Dubee requested to be transferred to another supervisor. Furthermore, after filing her FECA claim, she refused to permit her medical records to be shown to her supervisor. Eventually, after what she purports to be an excessive delay, she reached an agreement with the postal service permitting surrender of her medical records upon assurances that those documents would not be shown to her supervisor.

Dubee raises a number of claims. First, she contends she has been subjected to retaliatory harassment by employees and supervisors of the postal service in violation of Title VII. She also brings a number of failure to accommodate claims under the Rehabilitation Act, including allegations that the postal service (1) failed to reassign her upon request, (2) failed to promptly agree to guarantee to keep her medical records confidential, (3) vigorously fought her request for FECA benefits and (4) denied her a position as postmaster in East Randolph, Vermont despite being the most qualified candidate for the appointment.

II. Standard for Motion to Dismiss

Henderson seeks dismissal of Dubee's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Dubee is not required to plead every fact upon which she bases her claim; rather, the complaint need only contain "`a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (citation omitted). On a motion to dismiss, a court considers the legal sufficiency of the claim as stated in the complaint and does not weigh facts underlying the claim or their merits. Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Dubee's complaint is construed in the light most favorable to her, her factual allegations are accepted as true and all inferences are drawn in her favor. Press v. Chemical Inv. Serv. Corp., 166 F.3d 529, 534 (2d Cir.1999); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). A court should not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley at 45-46, 78 S.Ct. 99; see also, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

III. Discussion

Henderson's Motion to Dismiss contends: (1) Dubee's Title VII and Rehabilitation Act claims are barred by her application for and receipt of FECA benefits; (2) Dubee's Title VII and Rehabilitation Act claims are mutually exclusive, requiring her to make an election between the two; (3) Dubee is not a disabled person under the Rehabilitation Act, nor can she prove the postal service failed to provide reasonable accommodation for her disability; and (4) the retaliatory harassment claim is in fact an allegation of a hostile work environment which is not cognizable under Title VII. The Court will address each argument in turn.

A. Plaintiff's FECA award and the Rehabilitation Act and Title VII.

Under 5 U.S.C. § 8116(a) a federal employee may not receive federal salary, pension or retirement pay while receiving compensation related to an employment related injury pursuant to FECA. FECA is the exclusive remedy for a federal employee against the United States for a personal injury suffered while in the performance of their duties. See, 5 U.S.C § 8102(a). The purpose of the FECA preemption is to limit the government's liability in order that injured employees can be paid a reasonable level of compensation for job related injuries, regardless of fault. Tredway v. District of Columbia, 403 A.2d 732 (D.C.1979). The goal of FECA is to obtain recoveries which, although smaller, are more certain and less costly in exchange for the right to sue the federal government. Lance v. United States, 70 F.3d 1093, 1095 (9th Cir.1995) ("when Congress gave federal employees the right to recover for an injury under FECA, it took away their rights to sue the government in tort ...").¹ FECA is the exclusive remedy for injured federal employees within its coverage, Edwards v. United States, 833 F.Supp. 521 (E.D.Pa.1993); and it preempts federal workers' tort claims. Greathouse v. United States, 961 F.Supp. 173, 174-5 (W.D.Ky.1997) ("Once an injury falls within the coverage of FECA, its remedies are exclusive and no other claims can be entertained").

The issue before the Court is whether receipt of benefits for worker's compensation under 5 U.S.C. § 8101 precludes relief for claims of unlawful employment discrimination or retaliation under other statutes. Generally, courts have determined that receipt of FECA benefits does not bar Title VII or Rehabilitation Act claims. See, Miller v. Bolger, 802 F.2d 660, 665-66 (3d Cir.1986) (employee's recovery of Federal Employees Compensation Act benefits did not preclude Title VII remedies for discrimination); Reidy v. Runyon, 971 F.Supp. 760, 769-71 (E.D.N.Y.1997) (FECA does not operate as a bar to a Title VII or Rehabilitation Act recovery). See also, Nichols v. Frank, 42 F.3d 503, 515-16 (9th Cir.1994); George v. Frank, 761 F.Supp. 256, 259 (S.D.N.Y.1991); Karnes v. Runyon, 912 F.Supp. 280, 285 (S.D.Ohio 1995). Those opinions are founded upon a perceived distinction between the purposes of FECA as opposed to Title VII and the Rehabilitation Act, as well as the available remedies under each legislative scheme.

Dubee's receipt of FECA benefits limits her from receiving further compensation for accidental personal injuries suffered at work during the relevant period, including receipt of awards under the Federal Torts Claims Act. FECA's coverage is only for personal injuries "proximately caused by the employment." 5 U.S.C. § 8101(5). It is, in effect, a "no-fault" insurance policy which saves the government and its employees the expense and uncertainty of litigation regarding personal injuries related to the workplace. FECA does not provide relief for injuries due to discrimination, nor does it compel relief for disabled employees seeking reasonable accommodations in the workplace.

The harms addressed by Title VII and the Rehabilitation Act and the remedies available under these statutes differ significantly from FECA. Claims under Title VII and the Rehabilitation Act oftentimes arise out of intentional conduct on the part of employers, such as discrimination or retaliation. Moreover, claims under Title VII and the Rehabilitation Act seek equitable relief generally in addition to compensatory damages.

[If the Court] were to agree with the Postmaster General's theory that FECA recovery constitutes an election by the employee and divests the federal court of subject matter jurisdiction in Title VII cases, there would be no vehicle by which a federal employee could secure an order directing reinstatement, if warranted. Such a result would defeat the important public purpose expressed in Title VII of eliminating discrimination. Given the dissimilarity of relief available under FECA and Title VII, it is evident that exclusivity would leave [a plaintiff] without full compensation for [her] Title VII injuries.

Miller v. Bolger, 802 F.2d at 663-64.

FECA does not therefore provide relief for injuries due to discrimination, nor does it compel relief for disabled employees seeking reasonable accommodations as do the broader Title VII and the Rehabilitation Act. This lawsuit alleges intentional acts on the part of the defendant and a core aspect of the request for relief is equitable. Thus the harm complained of and the relief sought by Dubee fall outside the FECA parameters.

Moreover, 5 U.S.C. § 8116(a) was enacted before Title VII or the Rehabilitation Act, neither of which makes any reference to the preclusive effect of FECA. Certainly if Congress had intended FECA's restrictive language to apply to Title VII and the Rehabilitation Act, it could have stated so in these remediation statutes. As explained by one Court:

[W]hen Congress a...