Green v. Hinds et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS : The R & R of Judge Lindsay is adopted and the motion of the USPS Defendants to dismiss is granted. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 2/14/2019. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BRADLEY E. GREEN,
MEMORANDUM & ORDER
17-CV-5422 (DRH) (ARL)

Plaintiff,
-againstPAUL HINDS, TRICIA DANIEL, SEAN
CADDELL, PAM PHELAN, SHANE REESE,
DENISE MOORE, CAROL MUSOKOTOWANE
and CAROL BROWN,
Defendants.
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APPEARANCES:

For Plaintiff:
Abrams, Fensterman, Fensterman, Ferrara. Wolf & Carone, LLP
1 MetroTech Center Suite 1701
Brooklyn, New York 11201
By:
Justin T. Kelton, Esq.
For Defendants Paul Hinds, Tricia Daniel, Sean Caddell, Pam Phelan, Shane Reese, Denise
Moore, and Carol Musokotowane
Richard P. Donoghue
United States Attorney
Eastern District of New York
610 Federal Plaza
Central Islip, New York 11722
By:
Diane C. Leonardo, A.U.S.A.

HURLEY, Senior District Judge:
Presently before the Court are objections by plaintiff Bradley E. Green (“Green” or
Plaintiff”) to the Report and Recommendation, dated December 10, 2018 (“R&R”), of
Magistrate Judge Arlene R. Lindsay recommending that the motion to dismiss by Defendants
Sean Caddell (“Caddell”), Tricia Daniels (“Daniels”), Paul Hinds (“Hinds”), Denise Moore

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(“Moore”), Carol Musokotowane (“Musokotowane”), Pam Phelan (“Phelan”), and Shane Reese
(“Reese”) (collectively “ USPS Defendants”)1 be granted. For the reason set forth below, the
Court adopts the R & R of Judge Lindsay and grants the USPS Defendants’ motion to dismiss.
BACKGROUND
I.

Factual Background
The following factual allegations are taken from the complaint (“Compl.”).
Plaintiff commenced this action “to recover damages for defamation and intentional

infliction of emotional distress caused by the Defendants’ false and malicious attacks against
Plaintiff, who was a longtime and well-respected employee of the United States Postal Service
(the “USPS”) before the Defendants’ smear campaign led directly to his termination.” (Compl. ¶
1.) After a promotion in October 2015 to the position of Supervisor of Customer Relations,
Plaintiff was transferred to the Brentwood Post Office, where Defendant worked, with the
mission to clean up that branch. (Id. ¶ 2.) Defendants “resented Plaintiff’s mission and feared
what it might reveal about their conduct, so they conspired to stop Plaintiff at all costs, and
concocted a scheme designed to destroy Plaintiff’s reputation, career and life.” (Id. ¶ 3, see also
id. ¶ 28.) As part of this plan, Defendants “invented and circulated vicious rumors, falsely
claiming both orally and in writing that Plaintiff had said and/or done vile racist, sexist, or
otherwise extremely offensive and illegal things.” (Id. ¶ 4; see id. ¶¶ 28-72.) Brown, “a Financial
Secretary of the National Association of Letter Carriers and former employee of the USPS,” is
claimed to be the driving force behind this campaign. (Id. ¶¶ 15, 30-36.)

1

The USPS Defendants and defendant Carol Brown (“Brown”) are collectively referred to as Defendants.

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In February 2017, Plaintiff was informed that complaints had been filed against him
alleging he was racist, sexist and had created a hostile work environment; the complaints were
apparently based on the rumors spread by Defendants. An investigation ensued. It is alleged that
the investigation was “not conducted in an appropriate, confidential, and/or good faith manner,”
with Brown inserting herself into the investigation “even though she was not an employee of
USPS and was not assigned by the USPS to conduct any official investigation.” (Compl. ¶¶7584.) Examples of the alleged improper manner in which the investigation was conducted include
“Brown and/or the USPS” ignoring exculpatory evidence, sharing writings concerning witness
interviews, and sharing witness statements “with third parties who had no legitimate business
need to review such information.” (Id. ¶¶78-88.) On June 2, 2017, the USPS issued a “Notice of
Proposed Removal” to Plaintiff which “contained false and defamatory claims about Plaintiff,
and conclusively demonstrates that the Defendants’ false rumors about Plaintiff led directly to
the loss of Plaintiff’s career,” as he was terminated in November 2017. (Id. ¶¶89-93)
II.

Procedural Background
In August 2017, Green commenced an action against Defendants in the Supreme Court of

the State of New York, County of Suffolk, by means of a summons with notice, a procedure
authorized under New York law.2 The summons with notice contained the following description
of the nature of the action:
The nature of this action is Defamation by Slander and Libel. Specifically, upon
information and belief, each Defendant made false oral statements of fact to at least
one other person, as well as written false statements of fact to at least one other
person, regarding plaintiff, which resulted in Plaintiff receiving a “Notice of
Removal” from his position as supervisor with the United States Postal Service
2

See N.Y. CPLR § 304 (“An action is commenced by filing a summons and complaint or summons with notice . . . .
If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating
the nature of the action and the relief sought . . . .”)

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(“USPS”), and because of which Plaintiff is currently fighting termination of his job
and livelihood. The stress of these false accusations and resulting treatment of
Plaintiff at his place of employment had led to a medical condition requiring leave
from Plaintiff’s employment, even while he fights these false, coordinated
accusations intentionally designed to cost him his career at USPS.
Upon information and belief, Defendants made statements to USPS management that
Plaintiff made obscene and offensive comments including but not limited to calling
staff and colleagues “porch monkeys,” “niggers,” “faggot,” “princess,” “spic,”
“bitch,” and “pieces of shit.” Defendants also accused Plaintiff of engaging in smear
campaigns on Facebook. All of these accusations are false.
These statements were made orally and then reduced to writing, and signed by the
Defendants. These statements are the basis for the “Notice of Removal” from his
employer that Plaintiff received on June 2, 2017.
(DE 1 at 5-7.)
On September 15, 2017 the USPS Defendants filed a notice of removal together with a
certification signed by the United States Attorney’s office indicating that Defendants were acting
within the scope of their employment at the time of the incidents from which the claim arose.
(DE 1.) After the certification was filed, the United States learned that Brown had retired before
the occurrence of the incidents alleged in the complaint but was still an officer of the USPS
union during the period at issue. (USPS Defs.’ Mem. at 1 n.1.)
On December 27, 2017, Plaintiff file a complaint (DE 6); thereafter Defendant moved to
dismiss (DE 31). The motion was referred to Judge Lindsay who issued an R&R recommending
that the motion be granted as the certification was proper, the court lacks subject matter
jurisdiction to entertain the defamation claim and a claim for intentional infliction of emotional
distress was not properly pleaded. (DE 32.) On January 7, 2019, Plaintiff filed objections
thereto.

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DISCUSSION
I.

Applicable Standards
A.

Review of a Report and Recommendation

Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge issues a
report and recommendation on a matter “dispositive of a claim or defense of a party,” the district
court judge shall make a de novo determination of any portion of the magistrate judge’s
disposition to which specific written objection has been made. Fed. R. Civ. P. 72(b). Here,
Plaintiff essentially challenges the entirety of Judge Lindsay’s R & R. Specifically, he contends
that Judge Lindsay erroneously concluded that the USPS Defendants’ conduct was within the
scope of their employment, incorrectly found that Green was required to pursue administrative
remedies and incorrectly recommended dismissal of the claim for intentional infliction of
emotional distress. (Pl.’s Obj. at 2-3.) Accordingly, the Court shall conduct a de novo review of
the R&R.
B.

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)

A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). “In contrast to the standard for a
motion to dismiss for failure to state a claim under Rule 12(b)(6), a ‘plaintiff asserting subject
matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.’ ”
MacPherson v. State St. Bank & Trust Co., 452 F. Supp. 2d 133, 136 (E.D.N.Y. 2006) (quoting
Reserve Solutions Inc. v. Vernaglia, 438 F. Supp. 2d 280, 286 (S.D.N.Y. 2006)), aff’d, 273 F.
App’x 61 (2d Cir. 2008); accord Tomaino v. United States, 2010 WL 1005896, at *1 (E.D.N.Y.
Mar. 16, 2010). “In resolving a motion to dismiss for lack of subject matter jurisdiction, the

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Court may consider affidavits and other materials beyond the pleadings to resolve jurisdictional
questions.” Cunningham v. Bank of New York Mellon, N.A., 2015 WL 4101839, * 1 (E.D.N.Y.
July 8, 2015) (citing Morrison v. Nat’l Australia Bank, Ltd., 547 F.3d 167, 170 (2d Cir. 2008)).
C.

Motion to Dismiss Pursuant to Fed. R. of Civ. P. 12(b)(6)

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a cause of action, a court should “draw all reasonable inferences in Plaintiff[‘s] favor,
assume all well-pleaded factual allegations to be true, and determine whether they plausibly give
rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)
(internal quotation marks omitted). The plausibility standard is guided by two principles.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007)); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).
First, the principle that a court must accept all allegations as true is inapplicable to legal
conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679.
A plaintiff must provide facts sufficient to allow each named defendant to have a fair
understanding of what the plaintiff is complaining about and to know whether there is a legal
basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a motion to
dismiss. Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but asks
for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads facts

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that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line’ between
possibility and plausibility of ‘entitlement to relief.’ ” Id. at 678 (quoting Twombly, 550 U.S. at
556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007). Determining whether a complaint plausibly states a claim for relief is “a context specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
D.

The Scope of Employment Certification
1.

Background

Under the Federal Tort Claims Act (“FTCA”), as amended by the Westfall Act, the
remedy against the United States under the FTCA for tortious acts committed by employees
acting within the scope of employment is exclusive of any other civil action or proceeding
against the employee. 28 U.S.C. § 2679(b)(1). When the Attorney General certifies that the
tortious acts alleged against a federal employee were committed while the employee was acting
within the scope of employment, the United States is to be substituted as defendant for the
employee. Id. § 2679(d)(1). For actions pending in a state court, the United States is to be
substituted as defendant upon certification by the Attorney General that the employee was acting
within the scope of employment and the case is to be removed to federal court. Id. § 2679(d)(2);
see Osborn v. Haley, 549 U.S. 225, 233-34 (2007).
A district court will conduct de novo review of a § 2679(d) certification if
plaintiffs “allege with particularity facts relevant to the scope-of-employment
issue.” McHugh v. University of Vermont, 966 F.2d 67, 72, 74 (2d Cir.1992); see
also Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 436–37, 115 S. Ct. 2227,
132 L.Ed.2d 375 (1995). In conducting such review, the district court applies state
law principles pertaining to when intentional torts conduct falls within the scope
of a party’s employment. See McHugh, 966 F.2d at 75; Cronin v. Hertz Corp.,
818 F.2d 1064, 1065 (2d Cir.1987). The court must view the tortious conduct in
the light most favorable to plaintiff, but it makes its own findings of fact with
respect
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to the scope of the tortfeasor’s employment and, in so doing, the court may rely
on evidence outside the pleadings. See McHugh, 966 F.2d at 74–75.
Bello v. U.S., 93 F. App’x 288, 289–90 (2d Cir. 2004). A plaintiff challenging the scope of
employment determination must come forward with particular facts establishing the defendant
employees were not in fact acting within the scope of their employment. Regnante v. Sec. &
Exch. Officials, 134 F. Supp. 3d 749, 768 (S.D.N.Y. 2015).
In accordance with the Supreme Court’s decision in Osborn, the scope of employment
inquiry in a case alleging defamatory statements “addresses whether [those] statements were
made ‘on duty at the time and place of an ‘incident alleged in a complaint.’” Bowles v. United
States, 685 F. App’x 21, 23 (2d Cir. 2017) (quoting Osborn, 549 U.S. at 247.) “The truth or
falsity of the statements is not then at issue. ‘Were it otherwise, a federal employee would be
stripped of suit immunity not by what the court finds, but by what the complaint alleges.’ And ‘it
would make scant sense to read the Act as leaving an employee charged with intentional tort to
fend for himself when he denies wrongdoing and asserts that he engaged in only proper behavior
occurring wholly within the scope of his office or employment.’” Id. (quoting Osborn, 549 U.S.
at 247-48). So too, allegations that a defendant acted “maliciously or for purposes of retaliation”
do not play a part in the scope of employment determination. See id. at 24 (citing Osborn, 549
U.S. at 250-51). In other words, whether the alleged statements were made in the scope of
employment “does not address the merits of the defamation claim, but the threshold question of
whether the [employee] – rather than the United States – need defend claims relating to those
statements.” Id. (citing Osborn, 549 U.S. at 238-39).

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2.

Discussion

Preliminarily, the Court will address Plaintiff’s argument that there were “[s]ignificant
[d] fficiencies” in the certification. (Pl.’s Obj. (DE 34) at 9.)
The first such asserted “deficiency” is that the certification attached to the Notice of
Removal was “premature” (Pl.’s Mem. in Opp. (DE17) at 1), because it was “filed before Mr.
Green’s Complaint had been served and, therefore before the Defendants or the Government had
any basis to know whether the acts that formed the bases of Mr. Green’s claims were actually
within the scope of the USPS Defendants’ employment . . . .” (Pl.’s Obj. at 9 (emphasis in
original).) The Court finds this argument unpersuasive in view of the notice portion of Summons
with Notice. Specifically, the statement in the notice that “each Defendant made false oral
statements of fact to at least one other person, as well as written false statements of fact to at
least one other person, regarding plaintiff, which resulted in Plaintiff receiving a “Notice of
Removal” from his position as supervisor with the United States Postal Service (“USPS”), and
because of which Plaintiff is currently fighting termination of his job and livelihood” provides a
reasonable basis to conclude the action concerned statements made by the defendants to the
employer which led to Plaintiff’s termination.
The second alleged “deficiency” relates to the inclusion of Brown in the certification.
Plaintiff’s argument, unsupported by any case law, is that the certification’s incorrect inclusion
of Brown demonstrates that the “Government simply filed a certification as a matter of course,
without regard to the facts of this case.” (Pl.’s Obj. at 10.) Perhaps if Brown had been a stranger
to the USPS this argument might have some merit. But she was not a stranger as she was retired
from the USPS and continued to maintain a role as a Union Representative. That, and the fact

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that the government was forthright in bringing its error to the attention of the Court, requires the
rejection of Plaintiff’s argument.
The Court now turns to Plaintiff’s assertion that the R&R misapplied New York law and
misconstrued the complaint’s factual allegations leading to the erroneous conclusion that the
conduct of the USPS Defendants was within the scope of their employment.
Here, Plaintiff has failed to allege with particularity facts relevant to the scope of
employment issue and therefore de novo review of the employment certification is not warranted.
Assuming arguendo that de novo review of the certification is appropriate, the Court finds that
plaintiff has not sustained his “burden of showing the certification was improper.” Catania v.
Herbst, 916 F. Supp. 2d 266, 269 (E.D.N.Y. 2013).
Under New York an employee's tortious acts fall within the scope of his employment if
“done while the servant was doing his master's work, no matter how irregularly, or [in] disregard
of instructions.” Pizzuto v. County of Nassau, 239 F. Supp. 2d 301, 313 (E.D.N.Y. 2003)
(quoting Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278, 1281 (1979))
(internal quotation marks omitted). In making that determination, courts consider the following
factors: “ ‘(1) whether the time, place and occasion for the act was connected to the employment;
(2) the history of the employer-employee relationship in actual practice; (3) whether the act is
one commonly done by such an employee; (4) the extent to which the act departs from normal
methods of performance; and (5) whether the act was one that the employer could reasonably
have anticipated.’ ” Asto v. Mirandona, 372 F. Supp. 2d 702, 707 (E.D.N.Y. 2005) (quoting
Bello, 93 F. App’x at 289 (citing Riviello v. Waldron, 418 N.Y.S.2d 300 (1979)); see also
Pizzuto, 239 F. Supp. 2d at 313.

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Applying the foregoing, the certification in this matter was properly made. First, there is
nothing to indicate that any of the alleged statements were made at a place other than the place of
employment, i.e. postal facilities. The allegations with respect to the alleged defamatory
statements, whether written or oral, made either to initiate the investigation into Plaintiff or
during the course of that investigation, which statements reported alleged discriminatory and
inappropriate remarks made by a supervisor during the course of employment are acts that an
employer can not only reasonably anticipate but should encourage, inter alia, in view of the
various employment discrimination laws. They also fall within the category of an acts that
employees commonly engage in. So too, statements by the USPS Defendants about their work
environment and supervisor made to Brown, a union representative, are properly characterized as
both “commonly done” and “reasonably anticipated.” While the complaint does assert that
Moore “likely” spread a “rumor" to “third parties” (Compl. ¶ 60) and that Musokotowane told
“at least one third party” (Comp. ¶ 70), Plaintiff fails in his burden of demonstrating the
certification was improper given the absence of any specifics as to the identity of the third party
and where the communication took place.
Having determined that the certification was proper, the United States is properly
substituted as Defendant in lieu of the USPS Defendants.
E.

Subject Matter Jurisdiction

In her R & R, Judge Lindsay recommended that the case be dismissed for lack of
jurisdiction for two reasons. First, the waiver of sovereign immunity set forth in the FTCA does
not apply to defamation claims as they are specifically excluded under the statute. (R & R at 16.)
Second, even if the defamation claims were permissible, Green failed to exhaust his
administrative remedies are required by 29 U.S.C. §§ 2401(a), 2675(a). Plaintiff’s objection to

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this portion of the R &R is premised on the argument that his “claims are properly asserted
against the USPS Defendants (as opposed to the United States) and accordingly [he] was not
obligated to undertake any administrative procedures prior to filing.” (Pl.’s Obj. at 2, see also id.
at 10). As the Court has determined that substitution of the United States for the USPS
Defendants was proper, this ground is rejected and Judge Lindsay’s R & R on this issue is
confirmed.
F.

The Claim for Intentional Infliction of Emotional Distress.

Plaintiff challenges both grounds upon which Judge Lindsay recommended dismissal of
the claims for intentional infliction of emotional distress, i.e., that Plaintiff failed to meet the
pleading requirements and that it is falls within the ambit of his claim for defamation.
“To state a claim for intentional infliction of emotional distress a party must allege ‘(1)
extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal
connection between the conduct and the injury, and (4) severe emotional distress.’” Sesto v.
Slaine, 171 F. Supp. 3d 194, 201-02 (S.D.N.Y. 2016) (quoting Bender v. City of New York, 78
F.3d 787, 790 (2d Cir. 1996). The bar for pleading this claim is “extremely high” and the
conduct alleged must be “so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society.” Id. (internal quotations marks omitted). “Even where a defendant is alleged to
have acted ‘with an intent which is tortious or even criminal, or has intended to inflict emotional
distress, or has even engaged in conduct that has been characterized by malice, or a degree of
aggravation which would entitle the plaintiff to punitive damages for another tort, there can be
no claim if the conduct at issue is not utterly reprehensible.’” Ostrowsky v. Depart. of Educ. of
NYC, 2013 WL 5963137, at *11 (E.D.N.Y. Nov. 7, 2013) (quoting Freedom Calls Found. v.

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Bukstel, 2006 WL 2792762, at *3 (E.D.N.Y. Sept.7, 2006). “Defamatory statements—even when
motivated by a desire to see an employee terminated or prevented from securing new
employment—are generally not sufficiently extreme and outrageous to support a claim of
intentional infliction of emotional distress.” Id.
The allegations in the Complaint fail to meet this exacting standard. Moreover, Plaintiff
has not plead any facts beyond those necessary to sustain his claims for defamation. Finally, this
claim is subject to administrative exhaustion pursuant to 28 U.S.C. 2675(a). As Plaintiff has not
exhausted, it is also dismissed due to lack of subject matter jurisdiction.
CONCLUSION
The R & R of Judge Lindsay is adopted and the motion of the USPS Defendants to
dismiss is granted.
SO ORDERED.
Dated: Central Islip, New York
February 14, 2019

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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