McMullan v. United States of America
Filing
12
MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 3/6/2017 - The United States' motion to dismiss 7 is GRANTED. The United States' motion to strike 11 is DENIED as moot. This action stands DISMISSED with prejudice and is STRICKEN from the Court's docket. cc: Counsel(DAK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
DUANE MCMULLAN,
Plaintiff,
v.
Civil Action No. 3:16-cv-473-DJH
UNITED STATES OF AMERICA,
Defendant.
* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff Duane McMullan sustained heat-related injuries while working as a mail carrier
for the United States Postal Service (USPS). (Docket No. 1-1, PageID # 7; D.N. 7-1, PageID #
32) McMullan alleges that his supervisor, Kevin Scott, failed to follow USPS policies and
procedures for treating heat-related injuries when he did not call 911 or take McMullan to the
hospital immediately. (D.N. 1-1, PageID # 7–10) The United States was substituted for Scott
under the Federal Employees Liability Reform and Tort Compensation Act. (D.N. 4, PageID #
21 (citing 28 U.S.C. § 2679)) The United States then filed a motion to dismiss, asserting that the
Court lacks subject matter jurisdiction because the Federal Employees Compensation Act
(FECA) provides the exclusive remedy for McMullan’s claims. (D.N. 7-1, PageID # 35–37
(citing 5 U.S.C. § 8102(a))) After the parties briefed the issue, the United States filed a motion
to strike McMullan’s sur-reply. (D.N. 11) Because the Court finds that McMullan’s claims fall
under FECA and thus the Court lacks subject matter jurisdiction, the motion to dismiss will be
granted. The motion to strike will be denied as moot.
I.
BACKGROUND
On July 29, 2015, Plaintiff Duane McMullan was delivering mail on foot for USPS in
Louisville, Kentucky. (D.N. 1-1, PageID # 7; D.N. 7-1, PageID # 32) A resident noticed that
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McMullan appeared to be suffering from heat-related symptoms and invited him inside her home
to cool off. (D.N. 1-1, PageID # 7) McMullan called his USPS supervisor, Kevin Scott, who
allegedly told the resident not to take McMullan to the hospital or call 911. (Id., PageID # 8)
McMullan claims that Scott told the resident that he would send someone to pick up McMullan
and take him to the hospital. (Id.) Approximately fifteen minutes later, Scott arrived to pick up
McMullan. (Id.) McMullan claims that rather than immediately taking him to the hospital, Scott
stopped at the office to pick up some paperwork. (Id., PageID # 9) When they arrived at the
office, Scott allegedly left McMullan in the van, rolled the windows down, and turned off the air
conditioning. (Id., PageID # 10) According to McMullan, a co-worker saw him in the van and,
seeing that he was disoriented and shaking, attended to McMullan while another employee called
911. (Id.) Paramedics arrived and took McMullan to the hospital. (Id., PageID # 11)
McMullan filed suit against Scott in Jefferson County, Kentucky Circuit Court, alleging
that Scott was negligent in his treatment of McMullan’s injury. (Id., PageID # 13) Scott
removed the case to this Court. (D.N. 1) Following removal, Scott filed a notice seeking
substitution of the United States as defendant pursuant to the Federal Employees Liability
Reform and Tort Compensation Act. (D.N. 4, PageID # 21 (citing 28 U.S.C. § 2679))
Once substituted, the United States filed a motion to dismiss. (D.N. 7) The government
argues that the Federal Employees Compensation Act (FECA) bars McMullan’s claims because
it provides “the exclusive remedy for job-related injuries sustained by federal workers” and thus
the Court lacks subject matter jurisdiction over such claims. (D.N. 7-1, PageID # 35–37 (citing 5
U.S.C. § 8102(a))) Additionally, the United States asserts that McMullan failed to exhaust his
administrative remedies under the Federal Tort Claims Act (FTCA). (Id., PageID # 37–39)
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In response, McMullan claims that “FECA does not bar tort lawsuits against coemployees when those employees are acting outside the scope of their employment.” (D.N. 8,
PageID # 48 (citing Bates v. Harp, 573 F.2d 930 (6th Cir. 1978))) McMullan alleges that Scott
was acting outside the scope of his employment because he violated USPS policies and
procedures for addressing heat-related injuries. (Id., PageID # 48–50)
The United States asserts that the Attorney General’s scope-of-employment certification
filed in support of the Notice of Substitution (D.N. 4) is prima facie evidence that Scott was
acting within the scope of his employment and McMullan has not produced sufficient evidence
to prove otherwise. (D.N. 9, PageID # 54)
McMullan filed a sur-reply, again arguing that Scott acted outside the scope of his
employment. (D.N. 10) The United States moved to strike the sur-reply on the grounds that
McMullan did not seek leave of the Court before filing it. (D.N. 11) McMullan did not respond
to the motion to strike.
II.
DISCUSSION
A. Motion to Dismiss
“Generally, if a federal employee sustains an injury ‘while in performance of his duty,’
compensation provided through FECA is his exclusive remedy against the United States.”
Williamson v. United States, No. 5:12-CV-334-JMH, 2013 WL 4785689, at *2 (E.D. Ky. Sept. 5,
2013) (citing 5 U.S.C. § 8102(a); Wright v. United States, 717 F.2d 254, 256–57 (6th Cir. 1983)).
If a claim falls under FECA or if “there is a substantial question of FECA coverage,” the Court
lacks subject matter jurisdiction to consider the complaint. Wright, 717 F.2d at 257. The
Supreme Court has explained that
FECA’s exclusive-liability provision . . . was designed to protect the Government
from suits under statutes, such as the Federal Tort Claims Act, that had been
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enacted to waive the Government’s sovereign immunity. In enacting this
provision, Congress adopted the principal compromise – the “quid pro quo” –
commonly found in workers’ compensation legislation: employees are guaranteed
the right to receive immediate, fixed benefits, regardless of fault and without need
for litigation, but in return they lose the right to sue the Government.
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193–94 (1983).
The parties do not dispute that McMullan sustained his injuries “while in performance of
his duty” as a mail carrier, making his claims subject to FECA’s limits. (D.N. 1-1, PageID #7;
D.N. 7-1, PageID # 32–33) Nevertheless, McMullan argues that FECA does not bar his suit
because Scott was acting outside the scope of his employment. (D.N. 8, PageID # 48 (citing
Bates, 573 F.2d 930))
In Bates, the Sixth Circuit found that FECA did “not abrogate the common law right of
an employee to sue a negligent fellow employee.” 573 F.2d at 935. However, if the fellow
employee was acting within the scope of his employment, “the United States may be substituted
as the defendant” under the Westfall Act, 28 U.S.C. § 2679. Howard L. Graham, Fed. Emps.
Comp. Act Prac. Guide § 23:5 (2d ed. 2016). “If such a substitution takes place, then FECA may
bar the plaintiff’s claim as the suit no longer would be against the co-employee but rather against
the United States.” Id.; see also RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125,
1142–43 (6th Cir. 1996).
The Westfall Act provides:
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.
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28 U.S.C. § 2679(d)(1). The Sixth Circuit has held that the Attorney General’s certification
under the Westfall Act is “prima facie evidence that the employee was acting within the scope of
employment.” RMI Titanium, 78 F.3d at 1143.
The Attorney General’s certification “does not conclusively establish as correct the
substitution of the United States as defendant in place of the employee,” however. Coleman v.
United States, 91 F.3d 820, 823–24 (6th Cir. 1996) (internal quotation marks omitted) (citing
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995); RMI Titanium, 78 F.3d at 1143). The
Court must also look to state law to determine whether the employee was acting within the scope
of his employment. See id.; see also Gilbar v. United States, 229 F.3d 1151 (6th Cir. 2000).
“Under Kentucky law, for alleged conduct to be considered within the scope of employment ‘the
conduct must be of the same general nature as that authorized or incidental to the conduct
authorized.’” O’Bryan v. Holy See, 556 F.3d 361, 383 (6th Cir. 2009) (quoting Osborne v.
Payne, 31 S.W.3d 911, 915 (Ky. 2000)). Kentucky courts look to the following four factors in
determining whether an employee’s action is within the scope of employment:
(1) whether the conduct was similar to that which the employee was hired to
perform; (2) whether the action occurred substantially within the authorized
spacial and temporal limits of the employment; (3) whether the action was in
furtherance of the employer’s business; and (4) whether the conduct, though
unauthorized, was expectable in view of the employee’s duties.
Coleman, 91 F.3d at 824 (citing Flechsig v. United States, 991 F.2d 300, 303 (6th Cir. 1993);
Frederick v. Collins, 378 S.W.2d 617, 619 (Ky. Ct. App. 1964); Wood v. Se. Greyhound Lines,
194 S.W.2d 81, 83 (Ky. 1946)).
1. Similar Conduct
The Sixth Circuit has explained that “the duties of an employee include those that he or
she is ‘expressly or impliedly’ hired to perform.” Coleman, 91 F.3d at 824 (citing Marcum v.
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United States, 324 F.2d 787, 790 (6th Cir. 1963)). In Coleman, the Sixth Circuit “examine[d]
[the defendant’s] responsibilities as a postal worker holistically to determine whether they would
reasonably include the type of activity at issue.” Id.
Kevin Scott was McMullan’s supervisor when the incident occurred. (D.N. 1-1, PageID
# 8) McMullan states that Scott received training on the USPS’s policies and procedures
regarding heat-related injury and “was given clear instructions on numerous occasions for the
post office on what to do in case of an emergency.” (D.N. 8, PageID # 48–49) Therefore, Scott
was both expressly and impliedly authorized to handle heat-related injuries and other employee
emergencies as part of his duties. During the incident, Scott acted to address an employee’s
heat-related injury. The Court thus finds that Scott’s conduct was similar to that which he was
hired to perform. See Coleman, 91 F.3d at 824.
2. Spacial and Temporal Limits
The incident occurred during business hours and at locations that were within the
authorized spacial limits of Scott’s employment. Scott picked up McMullan at a location that
was on McMullan’s mail route and took him to the local USPS office. Therefore, the Court finds
that Scott’s actions were within the spacial and temporal limits of his employment. See id.
3. In Furtherance of USPS Business
“The Sixth Circuit Court of Appeals, in applying Kentucky law . . . [has] held that when
determining whether the employee’s conduct furthers the business of the employer, the ‘conduct
in question need only be done in part to benefit the employer.’” McGonigle v. Whitehawk, 481
F. Supp. 2d 835, 840 (W.D. Ky. 2007) (quoting Coleman, 91 F.3d at 825–26). The employee
acts outside the scope of his employment if he “acts from purely personal motive which [is] in no
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way connected with the employer’s interests.” Id. (alterations omitted) (citing Patterson v. Blair,
172 S.W.3d 361, 369 (Ky. 2005)).
McMullan asserts that Scott was not acting in furtherance of USPS business because he
did not follow USPS policies and procedures for handling heat-related injuries. For support,
McMullan analogizes to the case of a pilot who flew during unsafe weather conditions despite
being told by his employer not to do so; the pilot was found to have acted outside the scope of
his employment. (D.N. 8, PageID # 49 (citing Fowler v. Baalmann, Inc., 361 Mo. 204, 234
S.W.2d 11 (1950))) McMullan argues that because Scott was instructed on how to handle heatrelated injuries and did not follow those instructions, he was acting outside the scope of his
employment.
However, in Fowler, the court distinguished between the pilot’s “purely voluntary act”
that was “unknown and unaccepted” by the employer, and cases “where an employee was doing
a thing he was employed to do, but was doing it in a manner prohibited by his employer.” Id. at
212–13. The court explained that “[m]ere disobedience of an order as to the detail of the work in
hand or the mere breach of a rule as to the manner of performing the work [is] not generally
sufficient to deprive an employee of his right to compensation so long as he does not go out of
the sphere of his employment.” Id. at 212 (emphasis omitted). An employee acts outside the
scope of his employment when his conduct “has been expressly forbidden.” Id.
While Scott may not have complied with the instructions he was given for handling heatrelated injuries, his actions were consistent with his job duties. See id. As discussed earlier,
Scott’s job duties included addressing employee injuries and emergencies. (D.N. 8, PageID #
48–49) Scott’s actions were consistent with these duties when he picked up McMullan and took
him back to the office. Even if it could be determined that Scott failed to follow USPS policy in
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handling McMullan’s illness, the noncompliance would be disobedience as to the details of the
work, not a “purely voluntary act” that was forbidden by USPS. Fowler, 361 Mo. at 212–13.
There is also no suggestion that Scott was acting from “purely personal motive.” McGonigle,
481 F. Supp. 2d at 840 (citing Patterson, 172 S.W.3d at 369). Therefore, Court finds that Scott
was acting in furtherance of USPS business.
4. Expected Conduct
“In looking at this factor, courts should refer back to their analysis used in the first factor
to help determine whether the conduct was expected in light of the employee’s duties.” Id.
(citing Coleman, 91 F.3d at 826). As addressed earlier, Scott was expected to assist with
employee injuries. Therefore, even if Scott failed to comply with USPS instructions, the fact that
he acted in response to McMullan’s illness “was expectable in view of [his] duties.” Coleman,
91 F.3d at 824.
In reviewing the four factors, the Court finds that all four indicate that Scott was acting
within the scope of his employment during the incident at issue and thus the substitution of the
United States was correct. See Coleman, 91 F.3d at 823–24. As a result, McMullan’s claims fall
under FECA, and the Court lacks subject matter jurisdiction. Therefore, the Court will grant the
motion to dismiss. (D.N. 7)
B. Motion to Strike
Because the Court lacks subject matter jurisdiction and will dismiss the case, it need not
address the government’s motion to strike. The motion will be denied as moot. See Spradlin v.
Richard, 572 F. App’x 420, 425 (6th Cir. 2014).
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III.
CONCLUSION
For the reasons explained above, and the Court being otherwise sufficiently advised, it is
hereby
ORDERED as follows:
(1)
The United States’ motion to dismiss (D.N. 7) is GRANTED.
(2)
The United States’ motion to strike (D.N. 11) is DENIED as moot.
(3)
This action stands DISMISSED with prejudice and is STRICKEN from the
Court’s docket.
March 6, 2017
David J. Hale, Judge
United States District Court
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