Powers v. Charles River Laboratories, Incorporated et al
Filing
66
OPINION AND ORDER Adopting 58 Report and Recommendation, GRANTING IN PART AND DENYING IN PART 44 Motion to Dismiss, filed by Secretary of the Department of Health and Human Services, United States - Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JULIE POWERS,
Plaintiff in pro per,
Case No. 16-cv-13668
v.
Paul D. Borman
United States District Judge
UNITED STATES OF AMERICA
and SECRETARY OF THE
DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
Stephanie Dawkins Davis
United States Magistrate Judge
Defendants.
________________________________/
OPINION AND ORDER (1) ADOPTING MAGISTRATE JUDGE DAVIS’S
SEPTEMBER 10, 2018 REPORT AND RECOMMENDATION (ECF NO. 58),
(2) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 59),
(3) GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS (ECF NO. 44)
On September 10, 2018, Magistrate Judge Davis issued a Report and
Recommendation to Grant in Part and Deny in Part Defendants’ motion to dismiss Plaintiff’s
Amended Complaint. (ECF No. 58, Report and Recommendation) (“R&R”). Plaintiff filed
Objections to the R&R which are now before the Court for resolution. (ECF No. 59,
Plaintiff’s Objections to Magistrate Judge’s Report and Recommendation on Defendants’
Motion to Dismiss Amended Complaint.) Defendants have filed a Response to Plaintiff’s
Objections. (ECF No. 63, Response of the United States to Plaintiff’s Objections to the
September 10, 2018 Report and Recommendation.) The Court, having conducted de novo
review under 28 U .S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) of those portions of the R&R
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to which specific and timely objections have been filed, OVERRULES the objections,
ADOPTS the Report and Recommendation, and GRANTS IN PART AND DENIES IN
PART Defendants’ Motion to Dismiss.
I.
BACKGROUND
The background facts related to the Defendants’ motion to dismiss are set forth in
detail in the Magistrate Judge’s Report and Recommendation and are discussed infra as
relevant to the Court’s resolution of Plaintiff’s objections. The Magistrate Judge concluded
that Plaintiff is entitled to limited discovery on the issue of exhaustion of her claims (Counts
I and II) filed under the federal sector Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 633a, et seq. (“ADEA”); neither party objects to this recommendation. The
Magistrate Judge also concluded that Plaintiff’s claim filed under the Federal Tort Claims
Act, 28 U.S.C. § 1346(b), for Intentional Infliction of Emotional Distress (Count III)
(“IIED”), is subject to dismissal on both preemption and exhaustion grounds. The Plaintiff
now objects to the Magistrate Judge’s recommendations as to dismissal of her IIED claim.
II.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the
Court conducts a de novo review of the portions of the Magistrate Judge’s Report and
Recommendation to which a party has filed a “specific written objection” in a timely manner.
Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). A district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1). Only those objections that are specific are
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entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.
1986). “The parties have the duty to pinpoint those portions of the magistrate’s report that
the district court must specially consider.” Id. (quotation marks and citation omitted). “A
general objection, or one that merely restates the arguments previously presented is not
sufficient to alert the court to alleged errors on the part of the magistrate judge.” Aldrich v.
Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). “‘[B]are disagreement with the
conclusions reached by the Magistrate Judge, without any effort to identify any specific
errors in the Magistrate Judge’s analysis that, if corrected, might warrant a different outcome,
is tantamount to an outright failure to lodge objections to the R & R.’” Arroyo v. Comm’r of
Soc. Sec., No. 14-cv-14358, 2016 WL 424939, at *3 (E.D. Mich. Feb. 4, 2016) (quoting
Depweg v. Comm'r of Soc. Sec., No. 14-11705, 2015 WL 5014361, at *1 (E.D. Mich. Aug.
24, 2015) (citing Howard v. Secretary of Health & Human Services, 932 F.2d 505, 509 (6th
Cir. 1991)).
III.
ANALYSIS
Objection No. 1: Plaintiff’s Objection to the Magistrate Judge’s
Conclusion That Plaintiff’s IIED Claim is Preempted by the ADEA is
OVERRULED.
“Federal employees must rely upon Title VII and other federal antidiscrimination
statutes like the ADEA that apply to the federal government as the exclusive remedy for
combating illegal job discrimination.” Briggs v. Potter, 463 F.3d 507, 517 (6th Cir. 2006).
“‘In amending Title VII [and other federal statutes] to include federal employees, Congress
created an exclusive judicial remedy for claims of discrimination in federal employment.’”
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Id. (quoting Davis v. Runyon, No. 96-4400, 1998 WL 96558, at *5 (6th Cir. Feb. 23, 1998)).
However, when determining whether a claim is preempted, “a number of courts have
distinguished between discrimination claims and other claims which, although arising out of
the same facts and circumstances, seek to remedy injuries other than workplace
discrimination.” Wallace v. Henderson, 138 F. Supp. 2d 980, 984 (S.D. Ohio 2000). Courts
have struggled with the very question presented here: whether a plaintiff’s claim for
intentional infliction of emotional distress in connection with her employment dispute must
be dismissed because Title VII (or another federal antidiscrimination statute) provides the
exclusive remedy for the employment-related claims. Id. at 984-86. While the Sixth Circuit
does not appear to have squarely addressed this issue, district courts in the Sixth Circuit have
done so and provide the following reasoned approach: if the plaintiff’s allegations involve
“serious personal violation[s], such as rape, sexual assault; or stalking, defamation, and
harassment with phone calls,” the federal antidiscrimination statute would not preclude the
claim. Heimberger v. Pritzker, No. 12-cv-01064, 2014 WL 1050341, at *9 (S.D. Ohio
March 17, 2014) (internal quotation marks and citations omitted). However, an IIED claim
will be barred where the allegations describe “[m]erely ‘highly offensive’ conduct, such as
‘intentional touching and [ ] sexually suggestive and vulgar remarks,’ [which] are ‘typical
of the offensive workplace behavior giving rise to an action to remedy a hostile work
environment,’ and are properly considered under Title VII, not a separate cause of action.”
Id. (quoting Sommatino v. United States, 255 F.3d 704, 712 (9th Cir. 2001)).
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In Heimberger, the district court concluded that plaintiff’s allegations of sexual
harassment, including the following, did not describe conduct that fell outside of Title VII’s
preclusive bar: (1) being repeatedly asked to go on dates; (2) being told by her harasser that
she was “well put together” and “easy on the eyes;” (3) being asked to go on boat rides and
being told that she should wear shorts to work; (4) being forced to ride with her harasser on
personal errands; (5) being personally touched against her will; (6) being shown pictures by
her harasser on a cruise and asked to go on a cruise with him where he would wear only a
speedo bathing suit; (7) having to encounter her harasser showing up at restaurants where
plaintiff was dining; (8) receiving personal calls from him; and (9) being forced to attend
business meetings at which only she and her harasser were present. 2014 WL 1050341, at
*2. Plaintiff in Heimberger claimed that this “stalking” conduct caused her to experience
significant distress. The court found that this conduct, although “highly offensive,” did not
“meet the threshold of a ‘highly personal wrong’ separate and distinct from a sexual
harassment or hostile workplace claim.” Id. at *10. The court distinguished conduct such
as “threats to [her] life, threats to [her] employment, threats of serious injury to [her],
harassing language and gestures, and stalking,” which other courts had found sufficient to
take an IIED claim out from under the Title VII preclusive umbrella, but were lacking in
Heimberger’s complaint. Id. (citing Wallace, 138 F. Supp. 2d at 981-82.)
Here, in Response to Defendants’ motion to dismiss, Plaintiff cites the following
alleged conduct, which her Amended Complaint sets forth in support of all of her claims,
including her IIED claim:
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Despite her excellent performance and increasing responsibilities, Dr. Romero
repeatedly abused Plaintiff by nitpicking and berating her, commenting
negatively about her mental health and age, and making inappropriate personal
remarks regarding Plaintiff’s intelligence. (Amended Complaint ¶¶ 33-34.)
Dr. Romero’s bullying, intimidation, and humiliation worsened over time,
particularly after 2009. Id. at ¶¶ 36-38. Much of Dr. Romero’s abuse was
related to Plaintiff’s age, including critical statements in response to minor and
inconsequential errors. Id. ¶ 38. Dr. Romero told Plaintiff that she had
“memory problems,” but opined that they could not be due to “postmenopausal symptoms” since she was “well beyond that stage.” Id. ¶ 39.
(ECF No. 53, Pl.’s Response to Defs.’ Mot. to Dismiss 19, PgID 24.) Plaintiff also alleges
in her Amended Complaint that she was demoted, forced to give up her private office space,
and placed in a vacant position previously held by another administrative assistant to Dr.
Romero and was required to work in the file room 3-4 hours per day. (ECF No. 39,
Amended Complaint ¶¶ 46-57.)
Plaintiff alleges that Dr. Romero’s “bullying and
intimidating behavior” became “abusive and persistent, and sometimes took place in an
“isolated or closed office,” causing her to “fear for her physical safety,” and “creating a
hostile work environment.” (Am. Compl. ¶¶ 59-60.)
The Magistrate Judge concluded that Plaintiff’s allegations in this case “fall squarely
into the category of cases where IIED claims were found to be preempted by Title VII or the
ADEA,” noting the absence of “allegations involv[ing] alleged threats to her life, a physical
attack, or other highly personal injury.” (R&R 29, PgID 1285.) Plaintiff’s objections focus
largely on the effect that Dr. Romero’s alleged conduct had on her psychological well being,
but she does not dispute that the Magistrate Judge accurately described the allegedly
offending conduct. Plaintiff in her objections urges the Court to consider and rely on the
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Fifth Circuit’s decision in Wilson v. Monarch Paper Co., 939 F.3d 1138 (5th Cir. 1991),
where the court found that the employer’s degrading and humiliating conduct toward the
plaintiff – forcing a former vice-president of the company with 30 years of executive
experience to perform “menial and demeaning” janitorial duties resulting in a “steep
downhill push to total humiliation” – did not fall within the context of an ordinary
employment dispute. Id. at 1145-46. This Court is not bound by this Fifth Circuit decision.
But more importantly there are no such allegations here. The most that Plaintiff alleges with
respect to her “demotion” is that she was moved out of her private office, forced to take on
the responsibilities of another administrative assistant, and had to spend more time in the file
room. The Court is not persuaded by Plaintiff’s reliance on Wilson.
Plaintiff has failed to direct the Court to any error in the Magistrate Judge’s
conclusion that the allegations Plaintiff relies on in support of her IIED claim – which
importantly are the same allegations on which she relies to support her ADEA employment
claims – fail to cross the threshold into the extremely personal and assaultive types of
conduct that take a claim outside of the purview of Title VII or the ADEA. The Magistrate
Judge correctly concluded that Plaintiff’s IIED claim must be dismissed as preempted by the
ADEA.
Objection No. 2: Plaintiff’s Objection to the Magistrate Judge’s
Conclusion That Plaintiff Failed to Exhaust Her Administrative Remedies
on Her IIED Claim Filed Under the FTCA is OVERRULED.
As a prerequisite to filing suit under the FTCA, a claim must be presented to and
denied by the agency allegedly involved in the tort. This presentment requirement is set forth
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in 28 U.S.C. § 2675(a), which provides in pertinent part:
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.
Id.
Plaintiff’s second “objection” is actually a further concession that she did not present
a tort claim to the government before filing this lawsuit. This is clear from the attachments
to the Plaintiff’s Complaint, which demonstrate that she presented her tort claim to the
Defendant HHS after she filed this litigation. (ECF No. 39-2, Nov. 30, 2016 FTCA Claim
for Damage, Injury, or Death (amended Jan. 4, 2017), PgID 1136.) The Magistrate Judge
correctly concluded that Plaintiff did not exhaust her administrative remedies before filing
her FTCA IIED claim.
Plaintiff does not dispute that she did not file a tort claim with the government before
filing this lawsuit but “suggests” in her objection that she ought to be entitled to claim that
equitable tolling applies to her IIED claim. As an initial matter, this objection fails to
“pinpoint” any error in the Magistrate Judge’s R&R, and is therefore not entitled to de novo
review. In any event, even assuming equitable tolling applied, Plaintiff has made no case for
equitable tolling on her FTCA claim here. As the Magistrate Judge accurately observed,
Plaintiff’s “struggles with exhausting her ADEA claims do no simply “cross-over” to her
FTCA claim, which is an entirely different exhaustion process.” (R&R 34, PgID 1290.)
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The Magistrate Judge correctly concluded that Plaintiff did not exhaust her
administrative remedies pursuant to 28 U.S.C. § 2675(a) before filing her tort claim for
intentional infliction of emotional distress under the FTCA, 28 U.S.C. § 2671, et seq., and
the claim is therefore subject to dismissal without prejudice under Fed. R. Civ. P. 12(b)(6).
See Jackson v. Donahoe, No. 15-cv-3, 2015 WL 1962939, at *1 (W.D. Mich. May 1, 2015)
(observing that the “time bar contained in § 2675(a) is not jurisdictional,” and dismissing
plaintiff’s FTCA claim for failure to exhaust); Prince v. Nat’l Labor Relations Bd., No. 16cv-419, 2017 WL 1424983, at *4 (S.D. Ohio April 20, 2017) (noting that § 2675(a)’s
presentment requirement is not jurisdictional, analyzing defendant’s motion to dismiss under
Fed. R. Civ. P. 12(b)(6), and dismissing the FTCA claim for failure to file an administrative
claim prior to instituting a lawsuit).
IV.
CONCLUSION
For the foregoing reasons, the Court:
(1) OVERRULES Plaintiff’s Objections (ECF No. 59);
(2) ADOPTS the Report and Recommendation (ECF No. 58);
(3) DENIES WITHOUT PREJUDICE the Defendants’ motion to dismiss
Counts I and II of the Amended Complaint and ORDERS the parties to
conduct limited discovery related solely to the issue of exhaustion of
administrative remedies on Plaintiff’s ADEA claims, as directed by the
Magistrate Judge in her Report and Recommendation, with such discovery to
be completed on or before May 31, 2019;
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(4) ORDERS that Defendants may file a motion for summary judgment on the
issue of exhaustion on or before June 28, 2019; and
(5) GRANTS Defendants motion to dismiss Count III of the Amended
Complaint WITH PREJUDICE.1
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 29, 2019
1
A dismissal based on the grounds of preemption by Title VII or another
antidiscrimination statute should be dismissed with prejudice. See Vaghtshenas v.
Int’l Business Machines Corp., No. 16-cv-00179, 2017 WL 9251673, at *4 (E.D. Tex.
Feb. 8, 2017) (“a court should dismiss [such] preempted claims with prejudice”).
Although the Magistrate Judge alternatively found (and this Court agrees) that
dismissal of Plaintiff’s IIED claim for failure to exhaust administrative remedies is
also appropriate here, and such a dismissal would be without prejudice, see, e.g.
Robinette v. Union Hospital, No. 17-3471, 2018 WL 2106403, at *2 (6th Cir. March
22, 2018) (unpublished case) (citing Chapman v. City of Detroit, 808 F.2d 459, 462
(6th Cir. 1986) (indicating in dicta that a complaint should be dismissed without
prejudice for failing to exhaust EEOC remedies)), the Court dismisses Plaintiff’s IIED
claims on preemption grounds and not on exhaustion grounds.
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