Centeno v. Brennan

Filing 15

REPORT AND RECOMMENDATIONS: Defendant's Motion to Dismiss 8 be GRANTED, in part, as to Count III and IV of the Complaint; Defendant's Motion to Dismiss 8 be DENIED, in remaining part, as to Counts I and II of the Complaint; and Plainti ff be granted leave to file an Amended Complaint for the purpose of more fully describing the steps he took to exhaust his administrative remedies. Objections to R&R due by 12/21/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 12/7/2016. (lek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JOSE A. CENTENO,
Plaintiff,
vs.
MEGAN J. BRENNAN,
Postmaster General,

: Case No. 3:16-cv-00087
:
: District Judge Walter H. Rice
: Chief Magistrate Judge Sharon L. Ovington
:
:
:
:
:

Defendant.

REPORT AND RECOMMENDATIONS1
I.

Introduction
Plaintiff Jose A. Centeno, an employee of the United States Postal Service, brings

this case raising claims of disability discrimination, retaliation, breach of contract, and
intentional infliction of emotional distress. The case is before the Court upon
Defendant’s Motion to Dismiss (Doc. #8), Centeno’s Response (Doc. #10), Defendant’s
Reply (Doc. #14), an Exhibit Centeno filed with leave of Court (Doc. #13), and the
record as a whole.
II.

Factual Background
At this stage of the case, the Court accepts the Complaint’s well-pleaded factual

allegations as true, construes it in Centeno’s favor, and draws “all reasonable inferences”

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

in his favor. Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016). Doing so reveals
the following.
Throughout his many years of employment with the Postal Service, Centeno
worked as a letter carrier. Unfortunately, during his employment with the Postal Service,
he suffered multiple eye injuries and illnesses that affected his eyesight. Treatment of his
eye injuries and illnesses required him to use medicated eye drops up to three times a
day. Centeno asserts that due to his eye injuries and illnesses, “he is a disabled person as
that term is defined in the Rehabilitation Act of 1973.” (Doc. #1, PageID #4, ¶17).
Centeno asked the Postal Service to accommodate his eye disability and his
resulting need to use medicated eye drops. The Postal Service granted the
accommodation he asked for by permitting him to administer the eye drops during his
breaks. The accommodation allowed Centeno to be able to perform the essential
functions of his letter-carrier job.
A problem arose in the Summer of 2012 when “agency management changed and
a new Customer Service Manager … decided to end Plaintiff’s accommodation.” (Doc.
#1, PageID #4, ¶27). After Centeno’s initial efforts to resolve this problem were
unsuccessful, he retained an attorney and filed a Complaint with the Postal Service’s
Equal Employment Opportunity office (EEO office). On September 18, 2013, Centeno
and the Postal Service entered into a written settlement agreement. Under its terms, he
“resumed working in the manner he had when he was previously accommodated.” Id. at
¶34.

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At first, Centeno’s accommodation continued without a problem. In the spring of
2014, management changed at Centeno’s local Postal Service location. The new local
management continued to honor the September 2013 settlement agreement.
Trouble began to brew in November 2014 when Centeno was called into a
meeting with his union representative, local Postal Service management, and acting
labor-relations specialist Dawn Grilliott, who had previously been Centeno’s supervisor.
During the meeting, Grilliott told Centeno that “his agreed upon accommodation would
no longer be honored and instead his unpaid lunch period would be extended.” Id. at ¶41.
Centeno objected to the change and informed the Postal Service that this was a breach of
the September 2013 settlement agreement.
Centeno “continued to work in the manner in which he had agreed in the
settlement while watching for a change in his unpaid scheduled lunch period.” Id. at ¶43.
Initially, there was no change in his work scheduled work breaks. In early 2015, Grilliott
became Centeno’s acting local manager, and she began harassing him about his
accommodation. On approximately April 27, 2015, Centeno noticed that his lunch break
was being extended from thirty to sixty minutes.
Centeno asserts that his counsel began the notification process required by the
terms of the Settlement Agreement. In July 2015, the Postal Service’s EEO office issued
a final agency decision refusing to cure the breach and denying its actions constituted a
breach. Id. at ¶47.
Centeno appealed to the EEOC’s Office of Federal Operations [EEOC OFO]. “On
December 9, 2015, the EEOC OFO issued a decision in which they agreed that a breach
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of the settlement agreement had occurred.” Id. at ¶48. According to Centeno’s
Complaint in this case:
As the direct and proximate cause of Defendant’s actions and
inaction, which were accomplished with willful intent, bad faith and
malice, Plaintiff has suffered injury and damages, including, but not
necessarily limited to, lost wages and benefits, humiliation, embarrassment,
inconvenience, mental and emotional suffering, and loss of enjoyment of
life.
Id. at ¶51.
III.

Discussion
A.

Pleading Standards

“[A] complaint must contain ‘a short and plain statement of the claim showing that
the pleader is entitled to relief.’” 16630 Southfield Ltd. Partnership v. Flagstar Bank,
F.S.B., 727 F.3d 502, 503 (6th Cir. 2013) (quoting, in part, Fed. R. Civ. P. 8(a)). “To
survive a motion to dismiss, a litigant must allege enough facts to make it plausible that
the defendant bears legal liability. The facts cannot make it merely possible that the
defendant is liable; they must make it plausible. Bare assertions of legal liability absent
some corresponding facts are insufficient to state a claim.” Agema v. City of Allegan, 826
F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
B.

Defendant’s Documents

Defendant contends that dismissal of Centeno’s Complaint is warranted under
Fed. R. Civ. P. 12(b)(6). In support, Defendant’s Motion relies on sworn Declarations
and attached documents. Centeno argues that the Court should not consider the
documents Defendant attached to its Motion to Dismiss because Defendant “selectively
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attached many different documents that are unrelated to the claims in the complaint.”
(Doc. #10, PageID #163). He further argues that Defendant’s documents were never
mentioned in the Complaint.
“‘In determining whether to grant a Rule 12(b)(6) motion, the court primarily
considers the allegations in the complaint, although matters of public record, orders,
items appearing in the record of the case, and exhibits attached to the complaint, also may
be taken into account.’” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)
(citation omitted); see Clark v. Donahoe, 2012 WL 3224097, at *4 (6th Cir. Aug. 6,
2012) (the court may take judicial notice of administrative decisions as matters of public
record). Additionally, the Court “may also consider documents that a defendant attaches
to a motion if the documents ‘are referred to in the plaintiff's complaint and are central to
her claims’ without converting the motion to one for summary judgment.” McLaughlin
v. CNX Gas Co., LLC, 639 F. App’x 296, 298 (6th Cir. 2016) (citations omitted).
Centeno’s Complaint refers to and is accompanied by two documents: a copy of
the September 2013 settlement agreement and a copy of the EEOC’s Office of Federal
Operations’ (OFO’s) December 2015 decision. It is proper to consider these documents
without converting Defendant’s Motion to Dismiss into a Motion for Summary
Judgment. See Amini, 259 F.3d at 502. Centeno has also filed a copy of the Postal
Service’s July 13, 2015 decision. It is therefore safe to assume that he seeks
consideration of this decision without converting Defendant’s Motion to a Motion for
Summary Judgment.

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Defendant has attached three sworn Declarations to its Motion to Dismiss. The
first is by Lori L. Markle, an attorney with the Postal Service. Her statements and
Exhibits narrate the story of how Centeno’s formal EEO complaint proceeded
administratively through the parties’ September 2013 settlement agreement and the
dismissal of his EEO complaint. (Doc. #8, PageID #s 66-69). The second sworn
Declaration is by William C. Coutu, the Manager of EEO Compliance and Appeals for
the Region encompassing Dayton. Coutu’s Declaration and attached Exhibits describe
the procedural background of Centeno’s claims beginning with his July 2015 letter to the
Postal Service’s EEO Compliance and Appeals Office. This letter alerted the EEO Office
to Centeno’s assertion that the Postal Service had breached the September 2013
settlement agreement. Coutu’s Declaration and Exhibits continue to document the
procedural background of Plaintiff’s claims concluding with the OFO notice in March
2016 that the Postal Service had complied with the corrective action previously ordered
(in the OPO’s December 2015 decision). Both Markle’s and Coutu’s Declarations and
attached Exhibits walk the same administrative road described in the Complaint and
concern matters that are central to Centeno’s claims. These matters include his claims
that Defendant breached the September 2013 settlement agreement, discriminated against
him based on his disability, retaliated against him for engaging in protected activity, and
exhausted his administrative remedies. See Doc. #1, PageID #s 6-9. As a result,
Defendant’s documents may be considered without converting its Rule 12(b)(6) Motion
into a Motion for Summary Judgment. See Amini, 259 F.3d at 502 (proper to consider
EEOC charge attached to Complaint); see also Weiner v. Klais and Co., Inc., 108 F.3d
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86, 89 (6th Cir. 1997)2 (“[A] defendant may introduce certain pertinent documents if the
plaintiff fails to do so…. Otherwise, a plaintiff with a legally deficient claim could
survive a motion to dismiss simply by failing to attach a dispositive document upon
which it relied.”). Conversion to summary judgment is also unwarranted as to the
administrative decisions attached to Defendant’s Motion because the Complaint refers to
these and such decisions are properly considered at this stage of the case. See Clark v.
Donahoe, 2012 WL 3224097, at *4 (S.D. Ohio Aug. 6, 2012) (the court may take judicial
notice of administrative decisions as matters of public record).
Centeno disagrees, arguing that the Complaint’s mere mention of his exhaustion of
administrative remedies does not support Defendant’s selective portions of the non-public
EEO file. This contention lacks merit because Centeno’s claims, as set forth in the
Complaint, describe events confirmed by Defendant’s documents, particularly the breach
of the September 2013 settlement agreement and the EEOC OFO’s decision issued after
the breach. Centeno, moreover, does not cite any case is support of his challenge to
Defendant’s present reliance on the documents, and he does not challenge the
authenticity of the documents.
In any event, conversion to summary judgment is also unwarranted because the
following analysis of the parties’ contentions construes in Centeno’s favor pertinent
information gleaned from Defendant’s documents. The analysis, moreover, does not rely

2

overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002).

7

on the information set forth in many documents including Exhibit C (Kimberly A.
Herbst’s Declaration) and the documents attached to Exhibit A.
C. Centeno’s Claims
Count I of Centeno’s Complaint claims that Defendant discriminated against him
based on his disability in violation of the Rehabilitation Act of 1973 by withdrawing the
accommodation established by the September 2013 settlement agreement and “otherwise
harass[ing]” him about the accommodation and the settlement agreement. (Doc. #1,
PageID #7). Centeno further claims that “the discrimination directed toward [him] was
sufficiently severe and pervasive to create a hostile work environment that a reasonable
person would find hostile and abusive.” Id.
Count II of Centeno’s Complaint asserts that Defendant retaliated against him in
violation of the Civil Rights Act of 1964 “by denying him his agreed upon
accommodation.” Id. at 8. He further asserts that the retaliation was sufficiently severe
and pervasive to create a hostile and abusive work environment. Id.
Centeno’s Count III raises a breach-of-contract claim based on the assertion that
Defendant breached the September 2013 settlement agreement. Count IV asserts
intentional infliction of emotional distress.
Defendant attacks Centeno’s Complaint on several grounds, including lack of
exhaustion, sovereign immunity, and waiver.

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Exhaustion
Defendant argues that this Court lacks subject matter jurisdiction over Centeno’s
discrimination and retaliation claims because he failed to exhaust his administrative
remedies.
“Plaintiffs bringing claims under either Title VII or the Rehabilitation Act must
exhaust the administrative remedies available to them, prior to filing suit in a federal
court.” Flowers v. Potter, No. 3:05cv052, 2008 WL 687630, at *7 (S.D. Ohio, Mar. 11,
2008) (Rice, D.J.); see Taylor v. Donahue, 452 Fed. App’x 614, 617 (6th Cir. 2011)
(citing Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976)) (other citation
omitted). “In permitting federal employees to sue under Title VII, Congress conditioned
the government’s waiver of sovereign immunity upon a plaintiff’s satisfaction of
‘rigorous administrative exhaustion requirements and time limitations.” Steiner v.
Henderson, 354 F.3d 432, 434-45 (6th Cir. 2003) (citation omitted).
While Defendant’s exhaustion contentions urge dismissal of Centeno’s
discrimination and retaliation claims for lack of jurisdiction, the better view is that
exhaustion is a condition precedent to proceeding in federal court. See Lockett v. Potter,
259 Fed. App’x 784, 786 (6th Cir. 2008) (citing McFarland v. Henderson, 307 F,3d 402,
406 (6th Cir. 2002) (“exhaustion requirements pursuant to Title VII are not jurisdictional
prerequisites ….”)); see Steiner, 354 F.3d at 435 (“The forty-five day filing period is not
a jurisdictional prerequisite, and can be tolled where principles of equity demand it.”).
Regardless, the exhaustion requirement rests on a solid foundation:

9

The requirement that the plaintiff exhaust remedies prior to
instituting suit is intended to ensure that the Commission will have been
afforded an opportunity to attempt conciliation and voluntary settlement,
“the preferred means for resolving employment discrimination disputes.”
Courts have thus held that an employee who does not initially follow the
administrative steps outlined in the Code and Regulations is precluded from
bringing an action before a federal court. These rules also apply to
retaliation claims that are based on conduct that occurred before the filing
of the original charge.
Flowers, 2008 WL 697630, at *7 (citing, in part, Tisdale v. Fed. Express Corp., 415 F.3d
516, 527 (6th Cir. 2005)) (other citations omitted).
Centeno ended the administrative processing of his underlying original EEO
complaint when he entered into the settlement agreement with the Postal Service on
September 18, 2013. According to Centeno’s Complaint, Defendant discriminated
against him after the parties’ agreed to settle his underlying EEO claims—i.e., after
September 18, 2013. For example, Centeno alleges that in early 2015 Grilliott became
his acting local manager and began harassing him about his disability accommodation.
(Doc. #1, PageID #6, ¶44). The Complaint asserts that “[a]fter initially accommodating
Plaintiff, Defendant withdrew the accommodation and otherwise harassed Plaintiff about
the accommodation and the settlement agreement involving the accommodation.” Id. at
¶57. The Complaint further asserts that Defendant retaliated against Centeno by denying
him the agreed upon accommodation, by harassing him, and by engaging in severe and
pervasive retaliatory actions though employees who were managers. Id. at ¶s 74-75.
Through these and similar post-September 2013 allegations, Centeno alleges in his
Complaint that disability discrimination and retaliation resurfaced after the parties
entered their settlement agreement on September 18, 2013.
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What steps did Centeno take to exhaust these discrimination and retaliation claims
before bringing the instant case? On July 2, 2015, his counsel notified the Postal Service
in writing that it “has breached the [September 2013] settlement agreement ….” (Doc.
#8, Exh. B-1, PageID #108). Counsel described the breach and asked the Postal Service,
pursuant to 29 C.F.R. § 1614.504, to comply with the settlement agreement. Counsel’s
notice was indeed consistent with 29 C.F.R. § 1614.504(a), which provides:
If the complainant believes that the agency has failed to comply with
the terms of a settlement agreement or decision, the complainant shall
notify the EEO Director, in writing, of the alleged noncompliance .... The
complainant may request that the terms of the settlement agreement be
specifically implemented or, alternatively, that the complaint be reinstated
for further processing from the point processing ceased.
After the Postal Service denied Centeno’s request for compliance with the
settlement agreement, he appealed to the EEOC OFO asking “to have his complaint
reinstated from the point where it was terminated….” (Doc. #8, Exh. B-4, PageID #129).
Consequently, although Centeno did not ask, pursuant to § 1614.504(a), the Postal
Service to reinstate his discrimination and retaliation claims, he did present that request to
the EEOC.
Defendant argues that Centeno failed to exhaust his discrimination and retaliation
claims in two ways: (1) he failed to request, pursuant to § 1614.504(a), that the Postal
Service reinstate his original EEO complaint, and (2) he failed to obtain a determination
from the EEOC’s Office of Federal Operations to reinstate his original EEO complaint.
Defendant points out that if Centeno had obtained a reinstatement decision from the
EEOC, he could have pursued his original EEO complaint (which alleged disability
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discrimination) “‘from the point the processing ceased …,’” meaning from the date of the
September 18, 2013 settlement agreement. (Doc. #8, PageID #59) (quoting 29 C.F.R. §
1614.504). In support of this, Defendant quotes Taylor v. Geithner, 703 F.3d 326 (6th
Cir. 2013), which explains:
Section 1614.504 allows a complainant either to seek injunctive relief, i.e.,
specific performance of the settlement agreement, within the agency
structure or to request what is essentially an unraveling of the settlement
agreement so that the complainant can pursue the underlying discrimination
claims, which can be reviewed in federal court.
703 F.3d at 335. Taylor thus indicates that a complainant who asks his or her agency to
unravel their settlement agreement has exhausted his or her administrative remedies.
Taylor, however, did not address the present situation where the claimant (Centeno)
asked his agency to specifically perform, rather than unravel, the terms of their settlement
agreement, yet later asked the EEOC to unravel the settlement agreement and reinstate
his original EEO complaint from the point it was terminated (by the September 2013
settlement agreement). See Doc. #8, Exh. B-4, PageID #129. Was this sufficient to
exhaust his administrative remedies?
The parties’ disagreement on this issue takes an unexpected turn at this point
because Centeno’s Memorandum introduces new information that does not appear in his
Complaint. He states:
Plaintiff alleged additional acts of discrimination and retaliation when he
reported the settlement breach. Plaintiff sought a new complaint for the
new acts of discrimination that led to the breach, but the agency refused to
accept the new complaints. Instead, the agency decided that the new
allegation[s] were part of the breach of settlement claims. The agency was
required to process the new allegation as either new complaints under 29
C.F.R. 1614.106 or new complaints under 29 C.F.R. 1614.204. Because
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the agency refused to process these new complaints, Plaintiff has exhausted
his administrative remedies.
(Doc. #10, PageID #164 (citing Exhibit 1)). Centeno’s allegation about seeking a new
EEO complaint, if accepted as true and construed in his favor, shows that the Postal
Service essentially prevented Centeno—through no fault of his own—from proceeding
with his underlying discrimination and retaliation claims at the agency level. The Postal
Service’s July 13, 2015 decision might support this because it acknowledges receipt of
Centeno’s request for counseling, and it states that the decision would treat the
counseling request as a breach allegation under § 1614.504. The Postal Service also
informed Centeno that his counseling request “will not be processed as a new counseling
request.” (Doc. #13). In light of this and Centeno’s counsel written notice, the record at
this point in the litigation indicates that Centeno followed the initial administrative
procedures in 29 C.F.R. 1614.504(a) and thereby provided the Postal Service with an
opportunity to investigate and address the underlying claims.
Yet, as noted previously, Centeno’s Complaint does not describe the scenario he
includes in his Memorandum. He overcomes this problem by alternatively seeking, in his
Memorandum, “leave of Court to amend any deficiencies.” (Doc. #10, PageID #166).
Granting Centeno leave to amend his complaint is warranted because such leave is
“freely granted as justice so requires.” Fed. R. Civ. P. 15(a)(2). Additionally, although
futility will defeat an attempt to amend a complaint, Miller v. Calhoun County, 408 F.3d
803, 817 (6th Cir. 2005), granting Centeno leave to amend is warranted because the

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amendment would not be futile. This is so when the new allegations, accepted as true
and construed in Centeno’s favor, show he exhausted his remedies at the agency level.3
This leaves Centeno’s effort to exhaust his discrimination and retaliation claims
with the EEOC’s OFO. Defendant contends:
If Plaintiff had obtained a determination from OFO that his underlying
EEO complaint should be reinstated, he could have pursued his underlying
discrimination and retaliation claims “from the point the processing
ceased.” 29 C.F.R. § 1614.504. Plaintiff, however, did not obtain such a
determination and, thus, he has not exhausted his administrative remedies.
(Doc. #8, PageID #59). This, however, seems to overlook that the Brief Centeno’s
counsel submitted to the EEOC OFO asking “to have his complaint reinstated from the
point where it was terminated….” (Doc. #8, Exh. B-4, PageID #129). Through this
request, Centeno sought relief that is available to claimants under 29 C.F.R. §
1614.504(a). Doing so, he provided the EEOC OFO with an opportunity to reinstate his
original EEO complaint after which he could pursue his post-September 2013
discrimination and retaliation claims.
A further consideration emerges from the Office of Federal Operations’
conclusion that the Postal Service had breached the September 2013 settlement
agreement and from its order directing the Postal Service to comply with certain terms of
the settlement agreement. (Doc. #1, PageID #s 14-15). Although the Office of Federal

3

This might not put an end to whether Centeno properly exhausted his claim at the agency level
because discovery might or might not support his allegations that he sought a new EEO complaint
from the Postal Service but the Postal Service refused to accept it. At present, his new allegations
are enough to avoid a Rule 12(b)(6) dismissal of his discrimination and retaliation claims that
arose after the September 2013 settlement agreement.

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Operations recognized that Centeno wanted his original EEO complaint reinstated from
the point where it had been terminated, its Decision chose enforcement of the settlement
agreement over reinstatement of his original EEO complaint. Having thus presented the
EEOC’s Office of Federal Operations with his claims and his request to reinstate his
original EEO complaint, these steps to exhaust administrative remedies cannot be
reasonably faulted. Centeno further points out, correctly, that the Office of Federal
Operations found the Postal Service in breach of the September 2013 settlement
agreement. It could, therefore, have granted his requested remedy by directing the Postal
Service to reinstate his underlying discrimination and retaliation claims and process them
from September 18, 2013 forward. As a result, the steps Centeno took to exhaust gave
both the EEOC and the Postal Service an opportunity to investigate and voluntarily settle
his post-September 2013 claims before federal judicial review.
Defendant relies on Fairfax v. Astrue, No. 09-2160, 2010 WL 4703554 (E.D. Pa.
Nov. 18, 2010) as an example of a case where a district court found that the plaintiff
failed to exhaust his discrimination claims even though he presented them to the EEOC.
The failure to exhaust occurred in Fairfax because the plaintiff failed to present any
claims to the agency’s (the Social Security Administration’s) EEO Director and had
instead “bypassed the EEO Director completely.” Id. at *4. The present case is unlike
Fairfax because Centeno did not completely bypass the Postal Service EEO. Rather, his
allegations reveal that he sufficiently alerted them to his claims and provided them with
a reasonable chance to attempt conciliation and settlement. Consequently, Defendant’s
reliance on Fairfax is misplaced.
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Defendant also relies on Hernandez v. Donovan, 710 F.Supp. 2d 1153 (D. New
Mexico 2010), which presents another failure-to-exhaust situation. In Hernandez, the
plaintiff failed to exhaust by framing the remedies he sought as alternatives. In his appeal
to the EEOC, the plaintiff’s brief “sought reinstatement of the complaint only in the event
that the Commissioner could not determine the meaning of the terms of the [previously
entered Settlement] Agreement.” Id. at 1158. His failure to exhaust thereby arose
because “he requested a reinstatement of his complaint only as an alternative—one the
Commission did not entertain.” Id. In the present case, Centeno asked the EEOC’s
Office of Federal Operation “to have his complaint reinstated from the point where it was
terminated.” (Doc. #8,Exh. B-4, PageID #129). Unlike the plaintiff in Hernandez,
Centeno did not seek this remedy as an alternative to enforcement of the settlement
agreement. Defendant’s reliance on Hernandez is therefore misplaced.
Defendant contends that even if this Court finds that Centeno exhausted his
administrative remedies, he has not identified any new discriminatory conduct beyond a
breach of the terms of his settlement agreement. This overlooks the allegations in
Centeno’s Complaint concerning Grilliott’s harassment of him after she became his
acting local manager. Counts I and II of Centeno’s Complaint assert claims of severe and
pervasive disability harassment and retaliatory harassment. Construing his Complaint in
his favor, these claims arose after the September 2013 settlement agreement and thus
constitute new discriminatory and retaliatory claims.
Accordingly, Rule 12(b)(6) dismissal of Counts I and II of the Complaint for
failure to exhaust is unwarranted.
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Sovereign Immunity
Centeno’s breach-of-contract claim, as described in his Complaint is based on
Defendant’s alleged breach of the September 2013 settlement agreement. The Complaint
is silent on the legal basis for this claim, although it incorporates all the previous
numbered paragraphs in the Complaint.
Defendant contends, relying on Taylor v. Geithner, 703 F.3d 328, 333 (6th Cir.
2013), that sovereign immunity bars Centeno’s breach-of-contract claim. In Taylor, the
plaintiff sued her federal employer, the Internal Revenue Service, for breach of a
settlement agreement. Taylor addressed “whether Congress waived sovereign immunity
for breach-of-settlement-agreement claims brought under Title VII against the federal
government as employer.” 703 F.3d at 333. To resolve this issue, the Court of Appeals
began with the well-established principle that “‘[t]he United States, as sovereign, is
immune from suit save as it consents to be sued….’” Id. (quoting United States v.
Sherwood, 312 U.S. 584, 586 (1941)). The Court of Appeals then recognized that the
government waives its sovereign immunity only when Congress explicitly does so with
“‘clear, express, and unambiguous …’” statutory language. Id. Waiver “‘cannot be
implied from vague language.’” Id. (quoting United Liberty Life Ins. Co. v. Ryan, 985
F.2d 1320, 1325 (6th Cir. 1993)).
Turning to Title VII, Taylor observed its previous holding that Congress had
written an explicit waiver of sovereign immunity into Title VII for discrimination claims
against the federal government. Id. at 333. Yet, this did not resolve the separate issue
presented in Taylor where the Plaintiff wanted to stretch the waiver of Title VII
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discrimination claims to her claim that the IRS had breached the terms of their settlement
agreement. The Court of Appeals declined to do so, finding that no language in Title VII
that explicitly or expressly waived the government’s sovereign immunity against Title
VII claims for breach of settlement agreement. Id. at 334-36.
In the present case, Taylor supports Defendant’s position that Title VII’s waiver of
sovereign immunity on discrimination claims does not encapsulate Centeno’s Title VII
breach-of-settlement claim. See id. at 334-35. As a result, sovereign immunity bars
Centeno’s Title VII claim that the Postal Service breached the September 2013 settlement
agreement. See id.
Centeno maintains that the facts of the present case are substantially different in
many respects from those in Taylor. Rather than parse each difference Centeno
describes, see Doc. #10, PageID #s 165-66, it suffices to recognize that even assuming,
in his favor, that those differences exist, they do not alter the legal conclusion the Sixth
Circuit reached in Taylor: Congress did not expressly waive sovereign immunity for
breach-of-settlement-agreement claims brought under Title VII. Taylor, 703 F.3d at 33435.
Accordingly, sovereign immunity bars Count III of Centeno’s complaint.
Waiver
Defendant contends that in the September 2013 settlement agreement, Centeno
waived his discrimination and retaliation claims by agreeing to dismiss them with
prejudice and by agreeing to waive his right to pursue them in federal court. This is
correct. In the settlement agreement, Centeno agreed “to withdraw and have dismissed
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with prejudice, his EEO complaint ….” He also agreed “to forever give up and waive all
claims and issues asserted in… [his EEO complaint] in all forums.” (Doc.# 1, Exh. 2,
PageID #22) (emphasis in original). As a result, Centeno has waived his discrimination
and retaliation claims to the extent they are based on the allegations and claims he raised
in his original EEO complaint.
This, however, does not mean that Centeno waived his discrimination and
retaliation claims based on events that allegedly occurred after the parties entered the
settlement agreement on or around September 18, 2013. The settlement agreement
specifies: “This waiver does not prohibit the Complainant from filing future claims
concerning any events that this Agreement is executed by the parties.” Id. In light of
this, Centeno did not waive his discrimination and retaliation claims to the extent they are
based on events that occurred after September 18, 2013.
Defendant maintains that Centeno did not file a new EEOC complaint alleging
discrimination or retaliation based on alleged events that occurred after the settlement
agreement in September 2013. Centeno contends, in his Memorandum, that he “alleged
additional acts of discrimination and retaliation when he reported the settlement breach.
[He] sought a new complaint for the new acts of discrimination that led to the breach, but
the agency refused to accept these new complaints.” (Doc. #10, PageID #164).
Intentional Infliction of Emotional Distress
Defendant contends that Centeno’s claim of intentional infliction of emotional
distress is precluded by Title VII and by his failure to exhaust his remedies under the
Federal Tort Claims Act. Centeno responds with factual allegations in support of his
19

intentional infliction of emotional distress, but he does not counter Defendant’s
arguments or cite to pertinent case law opposing Defendant’s arguments. (Doc. #10,
PageID #166).
Although Defendant relies on Title VII, which applies to Count II of the
Complaint, Count I asserts violations of the Rehabilitation Act of 1973. It is therefore
more accurate to view the issue under Count I as, whether the Rehabilitation Act
precludes Centeno’s intentional infliction of emotional distress claim. Perhaps it does,
given that “the ‘Rehabilitation Act is a federal employee’s exclusive remedy for
employment related discrimination based on a disability.’” Lyons v. Donahoe, 2016 WL
1070856, at *6 (S.D. Ohio March 16, 2016) (Rice, D.J.) (quoting Plautz v. Potter, No.
04-6105, 156 F. App’x 812, 815 (6th Cir. 2005)). But the parties do not squarely address
this, and there is no need to venture there in this case because Defendant’s exhaustion
argument is well taken.
To raise his claim of intentional infliction of emotional distress against the
government, Centeno “must establish that the United States has waived its sovereign
immunity.” Lundstrum v. Lyng, 964 F.2d 1142, 1145 (6th Cir. 1991) (citing United
States v. Sherwood, 312 U.S. 584, 586 (1941)). The Federal Tort Claims Act (FTCA)
creates a limited waiver of the government’s sovereign immunity for certain commonlaw claims. Id.; see 28 U.S.C. §§ 1346, 2671. “A prerequisite to suit under the FTCA,
however, is the exhaustion by the plaintiff of administrative remedies. Id. (citing 28
U.S.C. § 2675(a)).

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The FTCA requires claimants to first present the claim to the
appropriate agency and have the claim finally denied by the agency. See 28
U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113 … (1993). In
order to fulfill this requirement, the claimant must: (1) give written notice
of the claim sufficient to enable the agency to investigate the claim; and (2)
place a value (or “sum certain”) on the claim. See Glarner v. U.S., Dep't of
Veterans Admin., 30 F.3d 697, 700 (6th Cir.1994); 28 C.F.R. § 14.2(a).
Holt v. Morgan, 79 F. App’x 139, 141 (6th Cir. 2003); see Cox v. Shinseki, No.
3:08cv422, 2010 WL 3769105, at *5 (S.D. Ohio Sept. 24, 2010) (Rice, D.J.).
Neither Centeno’s Complaint nor his Memorandum in Opposition assert that he
provided written notice to the Postal Service of his claim of intentional infliction of
emotional distress, and he has not placed a value or sum certain on this claim.
Accordingly, Centeno has not exhausted his administrative remedies on his claim
of intentional infliction of emotional distress.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendant’s Motion to Dismiss (Doc. #8) be GRANTED, in part, as to
Count III and IV of the Complaint;

2.

Defendant’s Motion to Dismiss (Doc. #8) be DENIED, in remaining part, as
to Counts I and II of the Complaint; and

3.

Plaintiff be granted leave to file an Amended Complaint for the purpose of
more fully describing the steps he took to exhaust his administrative
remedies.

December 7, 2016
s/ Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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