Francis v. Donahoe

AMBROSE FRANCIS, Plaintiff, v. PATRICK DONAHOE, POSTMASTER GENERAL and UNITED STATES OF AMERICA, Defendants.

No. 13cv359 (SRU)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Dated: March 31, 2014

RULING ON MOTION TO DISMISS

Ambrose Francis, a former employee of the United States Post Office, filed this action against Postmaster General Patrick Donahoe alleging Title VII hostile work environment, wrongful termination and retaliation claims, as well as common law tort claims for defamation and intentional infliction of emotional distress. Upon the Postmaster General's motion, I substituted the United States of America as the defendant for the purposes of the common law tort claims. Now before me is the defendant's motion to dismiss Counts Two (defamation) and Five (intentional infliction of emotional distress) for lack of subject matter jurisdiction and Count Three (wrongful termination) for failure to state a claim upon which relief may be granted. For the reasons below, the defendant's motion (doc. # 15) is GRANTED.

I. Standard of Review

A. Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction . . . when the district court lacks the statutory or constitutionalpower to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "[T]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff," but "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal citations omitted). The party who seeks to invoke a court's jurisdiction bears the burden of establishing that jurisdiction. Thompson v. Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)).

B. Failure to State a Claim Under Rule 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed "merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiff, and decide whether it is plausible that the plaintiff has a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

Under Twombly, "[f]actual allegations must be enough to raise a right to relief above the speculative level," and assert a cause of action with enough heft to show entitlement to relief and "enough facts to state a claim to relief that is plausible on its face." 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). The plausibility standard set forth in Twombly andIqbal obligates Francis to "provide the grounds of his entitlement to relief" through more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely." Id. at 556 (quotation marks omitted).

II. Background¹

Francis worked as a letter carrier with the United States Postal Service (the "USPS") from 2000 to 2012. Am. Compl. ¶¶ 5, 22 (doc. # 14). On April 6, 2012, Francis suffered an injury after an incident with a co-worker. Id. ¶¶ 6, 8. The co-worker chased Francis while calling him names and then pushed a hamper into Francis, which caused Francis to hit his back on a desk. Id. ¶¶ 6, 7. During and immediately after this altercation, Francis's supervisor failed to respond to Francis's requests for assistance and medical treatment. Id. ¶¶ 7, 9.

On July 18, 2012, Bertha Belington, the USPS's Manager of Customer Services, called Francis into her office for a meeting. Id. ¶ 11. Francis requested that a union steward be present at the meeting, but Belington denied this request. Id. Francis alleges that during the meeting, Belington mistakenly accused him of making an inappropriate comment to her, which Francis vehemently denied. Id. ¶¶ 11-12. Francis again requested a union steward, and left Belington's office when she denied that request. Id. ¶ 12. Belington then followed Francis and screamed at him, using derogatory language. Id. ¶ 13. Thereafter, the USPS suspended Francis. Id. ¶ 14.

In response to this allegedly discriminatory treatment, Francis filed a complaint with the Equal Employment Office ("EEO") of the USPS on July 12, 2012 and a Request for EEOCounseling on July 19, 2012. Id. ¶ 19. The USPS issued a Final Agency Decision on December 11, 2012, concluding that the USPS had not subjected Francis to discriminatory treatment. See Final Agency Decision (doc. #19-1).² On September 14, 2012, the USPS issued Francis a Notice of Removal for "Unacceptable Conduct" and violation of the USPS's "Zero Tolerance Policy."³ Am. Compl. Count Three ¶ 22. On September 27, 2012, the USPS issued Francis a "Letter of Decision," but the Complaint does not reveal the substantive contents of that letter. Id. ¶ 23. Francis filed grievances on both actions and an arbitration was held on February 7, 2013. See id. ¶ 24. The Arbitrator denied the grievances in a decision dated February 18, 2013, which Francis received on February 27, 2013. Id. Francis, however, never received a Form 50 officially notifying him of his termination from the USPS. Id. ¶¶ 24-25. Francis then filed a second EEO complaint on March 26, 2013, alleging wrongful discharge. Id. ¶ 26.

Francis instituted this action on March 14, 2013, alleging that the USPS and its agents had discriminated against Francis because of his race (African American), color (black), and national origin (St. Lucian). Id. ¶¶ 15, 21.

III. Discussion

A. Defamation

The United States claims that the federal government has not waived its sovereign immunity for defamation claims and that the court should dismiss this count for lack of subject matter jurisdiction. Francis counters that this court has subject matter jurisdiction under 28U.S.C. § 1343(a)(3) or 28 U.S.C. § 1367. In addition, Francis posits that jurisdiction is proper because the defamation claim is "reasonably related" to the claims in his EEO complaint, and, therefore, Francis properly put the United States on notice of the claims against it.

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (citation omitted). Thus, "[i]t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212 (1983). Moreover, "waivers of sovereign immunity must be 'unequivocally expressed' in statutory text, and cannot simply be implied." Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (citations omitted).

The Federal Tort Claims Act ("FTCA") is the exclusive remedy "for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ." 28 U.S.C. § 2679(b)(1). The FTCA is a "sweeping waiver of sovereign immunity that, under specified circumstances, renders the Government liable for money damages for a variety of injuries caused by the negligence of Government employees." Lanus v. United States, 133 S. Ct. 2731, 2732 (2013) (Thomas, J., dissenting from denial of certiorari). The FTCA, however, specifically excludes a waiver of sovereign immunity for "[a]ny claim arising out of . . . libel [or] slander . . . ." 28 U.S.C. § 2680(h). Thus, the FTCA does not waive sovereign immunity for defamation claims. See, e.g., Schweitzer v. Dep't of Veterans Affairs, No. 3:99CV02148, 2001 WL 237195, at *3 (D. Conn. Feb. 21, 2001).

Francis attempts to create an end-run around the FTCA by invoking 28 U.S.C. §§ 1343 and 1367 as alternate bases for bringing a defamation claim. His arguments fail, however,because neither statute includes a waiver of sovereign immunity. See Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 542 (2002) (holding § 1367(a) does not waive sovereign immunity for state defendants); Jachetta v. United States, 653 F.3d 898, 907-08 (9th Cir. 2011) ("Because we fail to see how this text can be construed as an unequivocally expressed waiver of the government's sovereign immunity, we hold that 28 U.S.C. § 1343(a)(3) does not waive sovereign immunity." (citations omitted)); Wilkerson v. United States, 67 F.3d 112, 119 n.13 (5th Cir. 1995) ("Section 1367(a), however, deals only with the federal courts' power to exercise subject matter jurisdiction over certain claims and does not operate as a waiver of the United States sovereign immunity.").

Francis's "reasonably related" and "notice" arguments likewise are insufficient to overcome an immunity defense. Francis cites to Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002), but that case is inapposite. Although Morgan held that "the incidents constituting a hostile work environment are part of one unlawful employment practice, [for which] the employer may be liable for all acts that are part of this single claim," that holding did not address whether the...