Francis v. Donahoe

Filing 30

ORDER granting 15 Motion to Dismiss; granting 15 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Stefan R. Underhill on 3/31/2014. (Freuden, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

AMBROSE FRANCIS,
Plaintiff,
No. 13cv359 (SRU)
v.
PATRICK DONAHOE, POSTMASTER
GENERAL and UNITED STATES OF
AMERICA,
Defendants.

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 constitutional

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power 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 and

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Iqbal 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).
Background1

II.

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 EEO

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Unless otherwise noted, all background information is taken from the Amended Complaint (doc. #14).

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Counseling 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 28

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Francis had 90 days from his receipt of the December 11, 2012 USPS Final Agency Decision to commence this
action. See Final Agency Decision 21. Ninety days from the issuance of that decision would have been March 11,
2013, but Francis did not institute this action until March 14, 2013. It is unclear, however, when Francis received
the decision, and that affects the timeliness of his complaint. Therefore, any amended complaint filed in response to
this ruling should include the date that Francis received the USPS decision in order to ensure that his March 14,
2013 complaint was timely.
3
Presumably, the “Notice of Removal” signified Francis’s termination. The parties do not dispute that this is the
approximate date Francis was terminated.

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U.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,

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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 government had waived its sovereign immunity. See id. Instead,
Morgan centered on whether a Title VII plaintiff could file suit based on claims falling outside
the statutory period. Id. at 105 (holding discrete acts outside the statutory period could not be
included in suit). Thus, Francis’s arguments fall far short of an “unequivocally expressed”
statutory waiver of sovereign immunity. See Adeleke, 355 F.3d at 150.
B. Intentional Infliction of Emotional Distress
The United States moves to dismiss Francis’s claim for intentional infliction of emotional
distress (“IIED”) for failure to exhaust administrative remedies. Francis avers that he exhausted
his administrative remedies by filing a claim with the USPS’s EEO and under the Federal

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Employees’ Compensation Act (“FECA”) and, subsequent to initiating this lawsuit, a Form 95
with the Unites States Postal Service. The United States argues that filing a Form 95 subsequent
to filing a complaint in this court is insufficient.
The FTCA does waive sovereign immunity for IIED claims.4 Failure to exhaust
administrative remedies under the FTCA, however, is a jurisdictional bar. See Adeleke, 355 F.3d
at 154. Under 28 U.S.C. § 2675(a):
An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope
of his office or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by
certified or registered mail.
A claim is “presented” when a “[f]ederal agency receives from a claimant, his duly authorized
agent or legal representative, an executed Standard Form 95 or other written notification of an
incident, accompanied by a claim for money damages in a sum certain.” 28 C.F.R. § 14.2
(emphasis added). Thus, it was not necessary for Francis to file a Form 95 prior to initiating this
suit if he had provided the United States the requisite “other written notification.”
Nevertheless, Francis has failed to plead facts demonstrating presentment of an
administrative claim for intentional infliction of emotional distress. See 28 U.S.C. § 2675; In Re
Agent Orange Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987); Altman v. Connally, 456 F.2d
1114, 1116 (2d Cir. 1972). Francis does not describe the FECA action in his complaint;
therefore, filing that complaint cannot satisfy the presentment requirement. Francis did not

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Of course, to the extent that the plaintiff is claiming IIED as a result of his co-worker “pushing a hamper into” him,
there would be no waiver because that injury “aris[es] out of assault or battery.” See 28 U.S.C. § 2680(h); see also
United States v. Shearer, 473 U.S. 52, 55 (1985) (“We read this provision to cover claims like respondent's that
sound in negligence but stem from a battery committed by a Government employee.”); Vallo v. United States, 298 F.
Supp. 2d 1231, 1235 (D.N.M. 2003) (denying motion to amend complaint to include IIED claim because “Plaintiff’s
[impermissible] assault and battery claim encompasses the claim of the proposed IIED, and the allegations that
support those claims cannot be separated”).

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provide the court with his EEO complaint, nor does his complaint in this case state that his EEO
complaint included a claim for a “sum certain.” See Am. Compl. Therefore, Francis has failed
to make an affirmative showing that the EEO complaint meets the presentment requirement
either. Without more specific pleading or the EEO complaint, it is impossible to determine
whether Francis properly noticed the United States of an IIED claim and included a “claim for
money damages in a sum certain.” Thus, the IIED claim is dismissed without prejudice.
C. Wrongful Termination
The Postmaster General asserts that the court should dismiss Francis’s Title VII wrongful
termination claim for failure to exhaust administrative remedies. The Postmaster General claims
that Francis failed to contact an EEO counselor within the required 45 days after his termination,
on or about September 14, 2012. 5 Francis does not dispute that his second EEO complaint, filed
March 26, 2013, did not meet the 45 day requirement, but responds that his wrongful termination
claim is reasonably related to his July 2012 EEO complaint for discriminatory harassment.
Title VII “prohibits employment-related discrimination on the basis of race, color,
religion, sex, or national origin and retaliation against employees who complain about
discrimination.” Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008). A plaintiff’s failure
to exhaust administrative remedies typically is a time-bar to a Title VII claim unless subsequent
claims are “reasonably related” to the claims within his EEO complaint. See id. at 75.
A subsequent Title VII claim is “reasonably related” to an EEO claim “where the conduct
complained of would fall within the scope of the [EEO] investigation which can reasonably be

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The Equal Employment Opportunity Commission (“EEOC”) regulations require a federal employee alleging
discrimination to “initiate contact with a[n EEO] Counselor within 45 days of the date of the matter alleged to be
discriminatory . . . .” 29 C.F.R. § 1614.105(a)(1).

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expected to grow out of the charge of discrimination.”6 Butts v. City of New York Dep’t of Hous.
Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993), abrogated by statute on other grounds as
stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir. 1998). This is
“essentially an allowance of loose pleading.” Id. “This court has treated the requirement that a
federal employee bring a complaint to his or her EEO for resolution, see 29 C.F.R. § 1614.105,
as analogous to the requirement that a private sector employee first bring a complaint to the
attention of the [EEOC] for resolution.” Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir. 2003)
(citing Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001)).
Neither party provided the first EEO complaint, so it is not possible to determine
definitively whether Francis’s wrongful termination claim is reasonably related to the allegations
contained therein. See Williams v. New York City Hous. Auth., 458 F.3d 67, 71 (2d Cir. 2006)
(discussing reasonable relationship as “intimately connected to the facts asserted in the EEOC
complaint”). Nor is it possible to infer whether the facts alleged in the EEO complaint are
reasonably related to Francis’s wrongful termination claim based on the Final Agency Decision.
The Decision indicates that Francis alleged discrimination on the basis of race, color, and
national origin. Final Agency Decision 1. Francis’s complaint fails to tie his allegations of
wrongful termination to specific acts of discrimination on any of those grounds. Instead, the
amended complaint contains conclusory statements, asserting that Francis was wrongfully
discharged “due to the discriminatory, harassive, improper, illegal, and retaliatory actions of the
defendant” and that he “was summarily discharged and subjected to unchecked retaliation.” Am.
Compl. ¶¶ 27-28. Those assertions fail to meet the plausibility standard set forth in Twombly and

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A claim may also be reasonably related if it is in retaliation for filing an EEO claim or if the new claims are based
on incidents carried out in “precisely the same manner” as the conduct alleged in the EEO complaint. Butts, 990
F.2d at 1402-03. As is, the complaint does not contain enough factual allegations to support either form of
reasonable relation. It is unclear from the complaint whether the plaintiff is alleging that the wrongful termination
was a result of discrimination, retaliation, or both.

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Iqbal. See Twombly, 550 U.S. at 555-56; Iqbal, 556 U.S. at 678-79. Therefore, the wrongful
termination claim is dismissed without prejudice repleading.7
IV.

Conclusion
The defendants’ motion to dismiss (Doc. #15) is GRANTED with prejudice with respect to
the defamation claim (Count II), GRANTED without prejudice with respect to the wrongful
termination claim (Count III), and GRANTED without prejudice with respect to the IIED claim
(Count V). The plaintiff shall file a further amended complaint within thirty days of this ruling.
It is so ordered.
Dated at Bridgeport, Connecticut, this 31st day of March 2014.

/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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Francis should attach his EEO complaint to any future complaint.

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