Centeno v. Brennan

Filing 88

DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT (DOC. # 81 ); DISMISSING ALL CLAIMS WITH PREJUDICE; JUDGMENT TO ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY. Judgmen t shall enter in favor of Defendants and against Plaintiff. The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton. Signed by Judge Walter H. Rice on 9/30/2021. (bjr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOSE A. CENTENO,
Plaintiff,
V.

Case No. 3:16-cv-87

LOUIS DEJOY, Postmaster
General, United States Postal
Service, et al.,

JUDGE WALTER H. RICE

Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT'S MOTION TO
DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT (DOC. #81 );
DISMISSING ALL CLAIMS WITH PREJUDICE; JUDGMENT TO
ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF;
TERMINATION ENTRY

Plaintiff Jose Centeno lost his eyesight, forcing him to retire from his
position as a postal carrier with the United States Postal Service. He then filed
suit against the Postmaster General of the United States. His Second Amended
Complaint, Doc. #27, added a claim against Dawn Grilliott, the agency's Acting
Labor Relations Specialist. The United States, however, was later substituted as a
party for Ms. Grilliott. Doc. #63.
Plaintiff's Third Amended Complaint, Doc. #78, alleges: (1) disability
discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C.

§

701 et

seq.; (2) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-16; (3) personal injury under the Federal Tort Claims Act, 28 U.S.C. § 2671;

and (4) a state law claim of intentional infliction of emotional distress.
This matter is currently before the Court on Defendant's Motion to Dismiss
Plaintiff's Third Amended Complaint, Doc. #81, pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6). 1 That motion is now fully briefed and ripe for decision. See Docs.
##83, 84. The Court held a telephonic oral argument on the motion on June 28,
2021. Counsel then submitted supplemental briefs. Docs. ##85, 86.

I.

Factual Background and Procedural History

After Plaintiff retired from the military, he then worked for twenty years as a
letter carrier for the United States Postal Service ("USPS" or "the agency"). He
developed glaucoma and suffered from detached retinas in both eyes. These
conditions required him to administer medicated eye drops three times per day,
and keep his eyes closed for up to ten minutes after each application. He sought
an accommodation for his disability so that he could comply with his doctor's
instructions. He asked the agency to allow him to take paid comfort breaks in
addition to his two regularly-scheduled 10-minute comfort breaks and his unpaid

The United States Attorney's Office represents the United States on all claims
brought against the Postmaster General, and on all claims originally brought
against Defendant Dawn Grilliott (for which the United States was later
substituted). Unlike the Motion to Dismiss the Second Amended Complaint,
which was brought on behalf of "Defendants" (plural), this motion is captioned
"Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint."
Regardless of the caption, the Court notes that the motion seeks dismissal of all
remaining claims against all Defendants.
1

2

30-minute lunch break. 2 Although the agency initially granted Plaintiff's requested
accommodation, it discontinued it in the summer of 2012.
On October 5, 2012, Plaintiff filed an internal Equal Employment
Opportunity ("EEO") complaint, alleging discrimination and retaliation. Doc. #811. A Settlement Agreement, dated September 18, 2013, allowed him to once
again take the comfort breaks necessary to properly administer his eye drops.
Doc. #81-3, PagelD##849-55. The Agreement provided, in part, as follows :
Should a dispute arise regarding the implementation of this
Agreement, it is agreed that the Complainant will not file a new
administrative complaint or petition for enforcement until 15 days
after the Complainant has notified the Agency that Complainant
believes this Agreement has been breached, by providing the then
Manager of Human Resources for the Postal Service Cincinnati
District (or its successor) with a written statement which: (1) states
that Complainant believes this Agreement has been breached; and (2)
sets forth an explanation of how Complainant believes this
Agreement has been breached. It is the intent of this paragraph to
allow the Postal Service a reasonable time to, if possible, correct any
real or perceived difficulties arising from the implementation of this
Agreement.

Id. at PagelD##854-55.
In the spring of 2014, the agency again denied Plaintiff the agreed-upon
accommodation. After Plaintiff's counsel contacted the District Human Resources
Manager about the alleged breach of the Settlement Agreement, the agency
agreed to continue honoring the agreed-upon accommodation. However, in

2

Comfort breaks, customarily used when a letter carrier needs to use the
restroom, are not automatically calculated in the time for a given route.
3

November of 2014, Acting Labor Relations Specialist Dawn Grilliott informed
Plaintiff that, in the future, the agreed-upon accommodation would no longer be
honored. Instead, his unpaid lunch period would be extended from 30 minutes to
60 minutes.
Given that this change in schedule would prevent Plaintiff from being able
to properly administer his eye drops, he considered this to be a breach of the
Settlement Agreement and so informed the agency. He continued to take the
previously-agreed-upon comfort breaks while awaiting an agency response. Early
in 2015, Grilliott allegedly began harassing him about the accommodation.
At the end of April of 2015, Plaintiff noticed that, as he had been
forewarned, his unpaid lunch period was now being extended from 30 minutes to
60 minutes. On April 28, 2015, Plaintiff's counsel sent a letter to the agency's
Human Resources Manager concerning the breach of the Settlement Agreement.
As required by the Settlement Agreement, he gave the agency 15 days to address
the violation and comply with the settlement terms. Doc. #81-3, PagelD#856.
However, he received no response.
Accordingly, on May 13, 2015, Plaintiff requested EEO counseling on these
new complaints of discrimination and retaliation by Dawn Grilliott. Doc. #27-3,
PagelD##398-99. On July 2, 2015, Plaintiff's attorney notified the agency's EEO
Compliance Manager of the alleged breach of the Settlement Agreement and
demanded specific performance within 30 days. Doc. #81-3, PagelD#857.

4

On July 13, 2015, the agency informed Plaintiff that his new complaints
would be processed as a breach allegation, not as a new counseling request. Id.
at PagelD##858-61. The agency found his complaint to be untimely filed because,
although he was notified of the schedule change in November of 2014, he did not
notify the agency of the alleged breach until May 13, 2015. In addition, the agency
denied that its actions constituted a breach of the Settlement Agreement. The
agency maintained that there was never an agreement authorizing him to be paid
for an additional 30 minutes per day. Id.
On August 5, 2015, Plaintiff appealed the agency's decision to the EEOC's
Office of Federal Operations ("OFO"), asking for reinstatement of his underlying
claims if a breach was found. Doc. #81-2. He acknowledged that he was told of
the schedule change in November of 2014, but noted that the change was not
implemented until April 27, 2015, rendering timely his May 13, 2015, notification
to the agency. He further argued that the Settlement Agreement specifically
provided that he could use comfort breaks "as he is currently taking them,"

i.e.,

up to three 10-minute comfort breaks per day in addition to his regularly
scheduled breaks and lunch. He also argued that any overtime hours he logged
were attributable to the volume of mail on a given day, and not to the
accommodation. Doc. #33-3, PagelD##485-87.
While the appeal to the OFO was pending, Plaintiff was denied the
opportunity to take comfort breaks, and could not administer his eye drops as
prescribed. Plaintiff alleges that, as a result, he lost his ability to read the mail and
5

was unable to work after August 15, 2015. He took annual leave and sick leave for
several months. Doc. #27, PagelD#382.
In December of 2015, the OFO found that Plaintiff's complaint was, in fact,
timely filed, and that the agency had breached the Settlement Agreement. Doc.
#27-4, PagelD##406-13. Although Plaintiff had requested reinstatement of his
underlying claims, the OFO instead ordered specific performance of the
Settlement Agreement and ordered the agency to verify that it had cured the
breach. The OFO also notified Plaintiff of his right to file a civil action within 90
days. Id.
On January 29, 2016, the agency issued its final decision, certifying its
compliance with the OFO's December 2015, mandate. Plaintiff was told that, upon
his return to work, he would again be accommodated as previously agreed. Id. at
PagelD##414-15. By that time, however, Plaintiff's loss of sight was permanent
and he could no longer work at all. He filed for retirement in January of 2016.
Doc. #27, PagelD#382.
Plaintiff filed this lawsuit on March 11, 2016. His Second Amended
Complaint, Doc. #27, asserted claims of disability discrimination and retaliation
against the Postmaster General (Counts I and 11). It also asserted a personal injury
claim under the Federal Tort Claims Act against the United States of America
(Count 111), and a claim of intentional infliction of emotional distress (Count IV).
Defendants filed a motion to dismiss. Doc. #33. On January 9, 2018,
Magistrate Judge Sharon Ovington issued a Report and Recommendations, Doc.
6

#54, recommending that the Court sustain the motion in part and overrule it in
part. In a Decision and Entry dated March 26, 2018, Doc. #63, the Court adopted
the Report and Recommendations. As to Counts I and 11, the Court dismissed with
prejudice all claims that arose prior to the September 18, 2013, Settlement
Agreement for failure to exhaust administrative remedies. The Court dismissed
all claims that arose after that Agreement without prejudice, and remanded them
to the USPS for further proceedings, to be processed as new complaints. On
March 26, 2018, the Court overruled Defendants' motion to dismiss Counts Ill and
IV, but stayed the case pending exhaustion of administrative remedies on Counts I
and 11.3 Doc. #63.
On remand, the USPS investigated Plaintiff's claims that arose after the
September 18, 2013, Settlement Agreement, but refused to revisit claims
concerning any alleged breach of that agreement. The USPS issued its Final
Agency Decision on December 4, 2018, finding no discrimination or retaliation.
Doc. #78-4. The Final Agency Decision classified this as a "mixed case" complaint
and included a notice of Plaintiff's right to appeal "to the Merit Systems Protection
Board {"MSPB"), not the Equal Employment Opportunity Commission, no later
than thirty (30) days of the date of receipt of this decision." Id. at PagelD#797

Plaintiff filed a Notice of Appeal of the Court's March 26, 2018, Decision and
Entry. Doc. #64. On October 4, 2018, the Sixth Circuit Court of Appeals, however,
determined that it lacked jurisdiction over the appeal because there was no final
order. Doc. #68.

3

7

(emphasis in original). 4 The agency included a copy of the MSPB appeal form and
instructions for filing an appeal. Id. at PagelD##797-98. Plaintiff was also notified
that, in lieu of an appeal to the MSPB, he could file a civil action in federal court
within 30 days of the date of receipt of the decision. Id. at PagelD#798.
Despite these explicit instructions, Plaintiff did not appeal to the MSPB. Nor
did he notify the Court that he was seeking judicial review of the Final Agency
Decision. Instead, he appealed the agency's decision to the Equal Employment
Opportunity Commission ("EEOC"). On August 11, 2020, the EEOC's Office of
Federal Operations ("OFO") dismissed the appeal for lack of jurisdiction. Doc.
#73-1 . Plaintiff was notified of his right to request reconsideration within 30 days,
and his right to file a civil action in federal court within 90 days. Id.
On September 28, 2020, Plaintiff notified the Court that he did not intend to
appeal the OFO's decision. Doc. #73. During a conference call held on October
21, 2020, the Court granted Plaintiff leave to file a Third Amended Complaint.
Plaintiff filed his Third Amended Complaint on February 13, 2021, asserting the
same causes of action previously asserted in the Second Amended Complaint. He

A "mixed case complaint" is "a complaint of employment discrimination filed
with a federal agency based on race, color, religion, sex, national origin, age,
disability, or genetic information related to or stemming from an action that can
be appealed to the Merit Systems Protection Board (MSPB). The complaint may
contain only an allegation of employment discrimination or it may contain
additional allegations that the MSPB has jurisdiction to address." 29 C.F.R.
§ 1614.302 (a)(1).

4

8

added several new factual allegations concern ing alleged retaliation by Dawn
Grilliott. Doc. #78, PagelD#761.
This matter is currently before the Court on Defendant's Motion to Dismiss
Plaintiff's Third Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6). Doc. #81.

II.

Fed. R. Civ. P. 12(b)(1) and 12(b)(6)

Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss
a claim for relief based on lack of subject matter jurisdiction. Notably, challenges
to a court's subject matter jurisdiction can be made at any time. In re Federated

Dep 't Stores, Inc., 328 F.3d 829, 833 (6th Cir. 2003).
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal
of a complaint on the basis that it "fail[s] to state a claim upon which relief can be
granted. " The moving party bears the burden of showing that the opposing party
has failed to adequately state a claim for relief. DirecTV, Inc. v. Treesh, 487 F.3d
471 , 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451 , 454-55 (6th Cir.
1991 )). The purpose of a motion to dismiss under Rule 12(b)(6) is to allow a
defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief
even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635,
638 (6th Cir. 1993). In ruling on a 12(b)(6) motion, a court must " construe the
complaint in the light most favorable to the plaintiff, accept its allegations as t rue,

9

and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of
Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487 F.3d at 476).

To survive a motion to dismiss under Rule 12(b)(6), the complaint must
contain "enough facts to state a claim to relief that is plausible on its face." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Unless the facts alleged

show that the plaintiff's claim crosses "the line from conceivable to plausible,
[the] complaint must be dismissed." Id. Although this standard does not require
"detailed factual allegations, " it does require more than "labels and conclusions"
or "a formulaic recitation of the elements of a cause of action." Id. at 555.

Ill.

Evidentiary Issue
Defendant attached nine documents from Plaintiff's administrative record to

its motion to dismiss, Doc. #81-1 through Doc. #81-9. Plaintiff summarily objects
to the consideration of those documents in support of Defendant's motion, noting
that, as a general rule, on a motion to dismiss, the Court cannot consider matters
outside the pleadings without converting the motion into a motion for summary
judgment. Fed. R. Civ. P. 12(d).
In ruling on a motion to dismiss, however, the Court may consider "the
Complaint and any exhibits attached thereto, public records, items appearing in
the record of the case and exhibits attached to defendant's motion to dismiss so
long as they are referred to in the Complaint and are central to the claims

10

contained therein." Bassett v. Nat'/ Collegiate Athletic Ass'n, 528 F.3d 426, 430
(6th Cir. 2008).
As Defendant notes, the Third Amended Complaint ("TAC") specifically
refers to most of the documents attached to the Motion to Dismiss, and those
documents are central to the claims contained in the TAC. Accordingly, the Court
may consider the following documents without converting the motion into a
motion for summary judgment: (1) Doc. #81-1 , referred to in paragraph 37 of the
TAC; (2) Doc. #81-2, referred to in paragraph 72 of the TAC; (3) Doc. #81-4, referred
to in paragraph 90 of the TAC; and (4) Doc. #81-9, referred to in paragraph 15 of
the TAC.
Doc. #81-3 contains multiple documents that were attached to Centeno's
brief in support of his September, 2015, appeal to the OFO. Some may be
considered; others may not. The Settlement Agreement is referred to in
paragraph 41 of the TAC; the April 28, 2015, violation letter to the agency is
referred to in paragraph 69 of the TAC; the July 2, 2015, violation letter to the EEO
Manager is referred to in paragraph 71 of the TAC; and the agency's July 13, 2015,
response is referred to in paragraph 72 of the TAC. The Court may consider these
documents, which are central to Plaintiff's claims.
However, the Court will not consider the October 22, 2014, meeting notice
or the time sheets that were attached to the brief, given that these documents,
which are also part of Doc. #81-3, are not referred to in the TAC. Likewise,

11

because Docs. ##81-5, 81-6, 81-7 and 81-8 are not referenced in the TAC, the Court
will not consider these documents either.

IV.

Analysis
A.

Counts I and II: Disability Discrimination and Retaliation

Count I of the Third Amended Complaint alleges disability discrimination in
violation of the Rehabilitation Act of 1973. Count II alleges retaliation in violation
of Title VII of the Civil Rights Act of 1964. The Court previously divided Counts I
and II into cla ims that arose prior to the September 18, 2013, Settlement
Agreement, and claims that arose after that date.
1.

Pre-settlement agreement claims

In its March 26, 2018, Decision and Entry, the Court dismissed with
prejudice all claims that arose prior to the September 18, 2013, Settlement
Agreement, because Plaintiff had failed to exhaust his administrative remedies as
to these claims. Doc. #63, PagelD##695-700. To the extent the Third Amended
Compla int reasserts these claims, the Court finds no reason to revisit its previous
decision.
2.

Post-settlement agreement claims

The Court dismissed without prejudice the claims that arose after the
September 18, 2013, Settlement Agreement, and remanded them to the United
States Postal Service to be processed as new complaints. Doc. #63, PagelD##70105.
12

As previously noted, the Postal Service issued its Final Agency Decision on
December 4, 2018, finding no discrimination or retaliation. Doc. #78-4. Given that
this was a "mixed case" complaint, the agency notified Plaintiff of his right to
appeal "to the Merit Systems Protection Board, not the Equal Employment
Opportunity Commission," within 30 days. The notice further stated that, in the

alternative, Plaintiff could file a civil action in federal court within the same time
period. Id. at PagelD##797-98 (emphasis in original). Plaintiff, however, chose a
different route. Despite the explicit admonition not to file an appeal with the
EEOC, he filed an appeal with the EEOC on January 11, 2019. Not surprisingly, on
August 11, 2020, the EEOC dismissed the appeal for lack of jurisdiction. Doc. #731, PagelD##739-41.
In its Motion to Dismiss, Defendant argues that the disability discrimination
and retaliation claims that arose after the September 18, 2013, Settlement
Agreement must now be dismissed with prejudice because Plaintiff, having failed
to timely appeal the Final Agency Decision to the MSPB or to the district court,
has failed to exhaust his administrative remedies. The Court agrees.
The case of Wray v. Donahue, No. 2:13-cv-1006, 2014 WL 4181727 (S.D.
Ohio Aug. 21, 2014) (Sargus, J.), is instructive in this regard. In Wray, the
plaintiff's EEO complaint was processed as a mixed case complaint, and the
Postal Service issued its Final Agency Decision, finding no discrimination. As it
did with Mr. Centeno, the Postal Service informed Wray of her right to appeal to
the MSPB (not the EEOC), or to file a civil action . Wray didfile an appeal with the
13

MSPB, but it was dismissed as untimely. She did not timely appeal that decision.
She also filed an appeal of the Final Agency Decision with the EEOC. When that
appeal was dismissed for lack of jurisdiction, Wray appealed the EEOC's decision
to the district court. The Court concluded that the EEOC had properly dismissed
her appeal of the Final Agency Decision, and that, because she had failed to
exhaust her administrative remedies, her claims were subject to dismissal. Id. at

*7.
Here, despite clear notice in the Final Agency Decision that his only viable
options were to file an appeal with the MSPB, or to file a civil suit in the district
court, Plaintiff instead filed an appeal with the EEOC, which dismissed the appeal
for lack of jurisdiction. Plaintiff maintains that he did not trust the Postal Service
to accurately advise him of his appeal rights; however, as Defendant points out,
Plaintiff's mistrust of the Postal Service is irrelevant.
Plaintiff relies on 29 C.F.R.

§

1614.401 (d) as the source of his belief that he

had a right to appeal the Final Agency Decision to the EEOC's Office of Federal
Operations. That regulation provides, in relevant part, as follows:
(d) A grievant may appeal the final decision of the agency ... on the
grievance when an issue of employment discrimination was raised in
a negotiated grievance procedure that permits such issues to be
raised.
29 C.F.R. § 1614.401 (d). As Defendant notes, however, this subsection of the
regulation also expressly states that "[a] grievant may not appeal under th is part,
however, when the matter initially raised in the negotiated grievance procedure

14

... is appealable to the MSPB." Id. Because this was a "mixed case," it was
appealable to the MSPB, rendering any appeal to the OFO inappropriate.
Plaintiff denies filing a mixed case complaint. He notes that he did not label
it as such. This, however, is not determinative. As previously noted, a "mixed
case complaint" is:
a complaint of employment discrimination filed with a federal agency
based on ... disability ... related to or stemming from an action that
can be appealed to the Merit Systems Protection Board (MSPB). The
complaint may contain only an allegation of employment
discrimination or it may contain additional allegations that the MSPB
has jurisdiction to address.
29 C.F.R. § 1614.302 (a)(1 ). Plaintiff's claims of disability discrimination and
retaliation fall squarely within this definition.
Plaintiff notes that it was not until he received the Final Agency Decision
that he learned that the agency was treating his complaint as a "mixed case."
Citing 29 C.F.R.

§

1614.302(b), Plaintiff argues that the Postal Service was required

to notify him, during the processing of his discrimination complaint, that this was
a "mixed case," and that its failure to notify him earlier led him to believe that he
could appeal the Final Agency Decision to the OFO.
The Court rejects this argument. Section 1614.302(b) concerns the election
of remedies in cases involving allegations of discrimination. It provides, in
relevant part, as follows:
Election. An aggrieved person may initially file a mixed case
complaint with an agency pursuant to this part or an appeal on the
same matter with the MSPB pursuant to 5 CFR 1201.151, but not
both. An agency shall inform every employee who is the subject of
15

an action that is appealable to the MSPB and who has either orally or
in writing raised the issue of discrimination during the processing of
the action of the right to file either a mixed case complaint with the
agency or to file a mixed case appeal with the MSPB. The person
shall be advised that he or she may not initially file both a mixed case
complaint and an appeal on the same matter and that whichever is
filed first shall be considered an election to proceed in that forum.
29 C.F.R. § 1614.302(b) (emphasis added). The italicized language on which
Plaintiff relies imposes duties on the agency which are triggered if the employee
raises the issue of discrimination during the processing of the action. Nothing in
this regulation requires the agency, prior to issuing its Final Agency Decision, to
notify the aggrieved person of its intent to treat a complaint as a " mixed case"
complaint.
The Final Agency Decision clearly notified Plaintiff of his right to appeal to
the MSPB, not the EEOC. By appealing instead to the EEOC's OFO, he failed to
exhaust his administrative remedies. Counts 1 and 2 of the Third Amended
Complaint are subject to dismissal with prejudice on this basis. 5
B.

Count Ill: Federal Tort Claims Act ("FTCA")

In Count Ill of the Third Amended Complaint, Plaintiff seeks recovery under
the Federal Tort Claims Act ("FTCA"). He alleges that Defendants knew of his
serious eye condition and his need for an accommodation. They nevertheless
repeatedly breached the Settlement Agreement and denied him the opportunity to

The Court need not, and does not, address Defendant's alternative bases for
dismissal of these claims.
5

16

use his eye drops as prescribed, causing him to "suffer the loss of his eyesight, a
highly personal injury." Doc. #78, PagelD#767.
Plaintiff's Second Amended Complaint contained a nearly identical claim.
In her Report and Recommendations on Defendants' Motion to Dismiss the
Second Amended Complaint, Doc. #54, PagelD##624-25, Magistrate Judge
Ovington noted that the Federal Employees Compensation Act ("FECA") provides
the exclusive remedy to federal employees who are injured on the job. See 5
U.S.C.

§

8116(c); McDanielv. United States, 970 F.2d 194,197 (6th Cir. 1992).

Plaintiff had argued, however, that because the Department of Labor's
Office of Workers Compensation, Division of Federal Employees' Compensation,
already determined that FECA did not cover his eye injuries, he was permitted to
pursue a negligence claim under the FTCA. See McDaniel, 970 F.2d at 198 ("If the
Secretary determines that the injury did not occur in the performance of duty,
FECA does not cover the injury, and the employee may proceed in court.").
Magistrate Judge Ovington found that Plaintiff's factual allegations, accepted as
true, were sufficient to state a plausible claim under the FTCA. Doc. #54,
PagelD##625-26.
Neither party objected to this portion of the Report and Recommendations,
which the Court then adopted. Doc. #63, PagelD#690. Plaintiff maintains that
there is no reason to revisit the Court's previous ruling. He argues that, because
he has exhausted his administrative remedies under FECA, he is entitled to pursue
his FTCA claim.
17

Defendant argues, however, that the injuries that were the subject of the
Secretary of Labor's earlier finding are different from the later injuries that are the
subject of his FTCA claim. In July of 2008, Plaintiff alleged that, while on the job
on June 21, 2001, he suffered a detached retina in his left eye, and on October 7,
2002, while on the job, he suffered a detached retina in his right eye. He further
alleged that, on May 2, 2008, while on the job, the vision in his right eye became
blurry. Doc. #81-9, PagelD##877-78. The Secretary of Labor determined that
FECA did not cover these particular eye injuries because they were not jobrelated.
Plaintiff's current FTCA claim, however, is based on eye injuries sustained
years later as a result of the agency's failure to provide him with his requested
accommodation of allowing him comfort breaks to properly administer his eye
drops. Plaintiff alleges that the failure to accommodate his disability resulted in
the "loss of his eyesight." Doc. #78, PagelD#767. Defendant notes that there has
been no determination by the Secretary of Labor that FECA does not cover this
particular injury. As such, Plaintiff cannot proceed on his FTCA claim.
As Defendant points out in its Motion to Dismiss the Third Amended
Complaint, Plaintiff also faces another jurisdictional roadblock on this FTCA
claim. 6 Plaintiff's loss of eyesight allegedly arises, not from an "injury" suffered
on the job, but from the agency's breach of its duty to provide a reasonable

6

Defendant again notes that jurisdictional arguments can be raised at any time.
18

accommodation for Plaintiff's disability. See Doc. #78, PagelD#767. As such, the
Rehabilitation Act provides the exclusive remedy for Plaintiff's injury. See Plautz

v. Potter, 156 F. App'x 812,815 (6th Cir. 2005) ("The Rehabilitation Act is a federal
employee's exclusive remedy for employment related discrimination based on a
disability."); Spinosi v. United States, No. 2:11-cv-961, 2011 WL 7144897, at *4
(S.D. Ohio Dec. 6, 2011) (Deavers, M.J.), report and recommendation adopted,
2012 WL 368133 (S.D. Ohio Feb. 3, 2011) (holding that claimant cannot use the
FTCA to "enforce purported federal statutory duties" or to vindicate rights under
the Rehabilitation Act). Count Ill of Plaintiff's Complaint is subject to dismissal
with prejudice on this basis.
C.

Count IV: Intentional Infliction of Emotional Distress

Count IV of the Third Amended Complaint seeks damages for intentional
infliction of emotional distress. It alleges that Dawn Grilliott's false accusation
that Plaintiff was using his disability accommodation to work daily overtime was
extreme and outrageous and beyond all bounds of decency, and caused him
severe emotional distress. Doc. #78, PagelD#768.
Magistrate Judge Ovington previously rejected Defendants' arguments that
Plaintiff had failed to identify a right that was "distinct and independent" of his
rights under Title VII, and that Plaintiff had failed to state a plausible claim for
relief. Doc. #54, PagelD##627-28. When neither party objected to her
recommendation that this claim be permitted to proceed, the Court adopted this
portion of the Report and Recommendations. Doc. #63, PagelD#690.
19

Defendant now asks the Court to dismiss this cla im on grounds not
previously raised. It first notes that the Federal Tort Claims Act ("FTCA") is the
only avenue by which a plaintiff can sue the United States in tort. Johnston v.
O 'Neill, 130 F. App'x 1, 6 (6th Cir. 2005). Accordingly, Defendant argues that

Plaintiff's claim of intentional infliction of emotional distress must be construed as
an FTCA claim.
Defendant then argues that, because Plaintiff has not exhausted his
administrative remedies on this FTCA claim, he cannot proceed. McNeil v. United
States, 508 U.S. 105, 113 (1993). Although Plaintiff filed an administrative claim

under the FTCA for "permanent loss of eyesight in both eyes," see Doc. #27-4,
PagelD#423, it made no mention of harassment by Dawn Grilliott, and did not
include any claim of emotional distress.
The Court finds that Plaintiff has failed to exhaust his administrative
remedies under the FTCA on his claim of intentional infliction of emotional
distress. Moreover, staying this claim to allow him to exhaust his administrative
remedies would be futile because, as Defendant also argues, the claim is subject
to dismissal on other jurisdictional grounds. To the extent that this claim of
intentional infliction of emotional distress is based on the revocation of his
disability accommodation, the Rehabilitation Act provides his exclusive remedy.
Plautz, 156 F. App'x at 815. To the extent it is based on harassment by a

supervisor, FECA provides the exclusive remedy. Saltsman v. United States, 104

20

F.3d 787, 790 (6th Cir. 1997); Jones v. Tenn. Valley Auth., 948 F.2d 258,265 (6th
Cir. 1991 ).
Accordingly, the Court sustains Defendants' motion to dismiss Count 4, the
claim of intentional infliction of emotional distress, and dismisses said claim with
prejudice.

V.

Conclusion
For the reasons set forth above, the Court SUSTAINS Defendants' Motion to

Dismiss Plaintiff's Third Amended Complaint, Doc. #81, and DISMISSES all claims
WITH PREJUDICE.
Judgment shall enter in favor of Defendants and against Plaintiff.
The captioned case is hereby ordered terminated upon the docket records
of the United States District Court for the Southern District of Ohio, Western
Division, at Dayton.

Date: September 30, 2021
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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