Every v. Brennan et al (TWP2)

Filing 76

MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas W Phillips on 9/24/18. (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
CONSTANCE M. EVERY,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General,
et al.,
Defendants.

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No. 3:16-cv-710
Judge Phillips

MEMORANDUM OPINION
The defendants have filed a motion to alter or amend judgment [Doc. 67] by which
they seek reconsideration of the Court’s previous order which granted in part and denied
in part the defendants’ motion for judgment on the pleadings [see Doc. 66]. The defendants
have filed briefs in support of the motion to alter or amend [Docs. 68, 71] and the plaintiff
has responded in opposition [Doc. 70].
For the reasons set forth herein, the defendants’ motion [Doc. 67] will be
GRANTED.

I.

Background
A bit of procedural history will put the instant motion in context.

Plaintiff

Constance M. Every raised several claims arising from her employment with the United
States Postal Service (“USPS”) against defendants Megan Brennan, Postmaster General
for the USPS, and USPS employees Susan Frazier, Victor Condroski, Donna Aaron,

Donald Swoopes, Betsy Dykes, and Oscar Irvin (collectively “the individual defendants”).
Specifically, plaintiff alleged the following claims: (1) hostile work environment and
retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII), 42 U.S.C.
§ 2000e, et seq., [Doc. 41 at ¶ 41]; (2) violation of her exercise of free speech [Id. at ¶ 43];
(3) retaliatory discharge in violation of the Tennessee Public Protection Act (“TPPA”),
Tenn. Code Ann. § 50-1-304 1 [Id. at ¶ 45]; (4) violation of due process [Id. at ¶ 46]; (5)
negligent infliction of emotional distress [Id. at ¶ 48]; and (6) intentional infliction of
emotional distress [Id. at ¶ 50]. The Court granted in part the defendants’ motion for
judgment on the pleadings and dismissed all of the claims with the exception of the claims
of negligent infliction of emotional distress and intentional infliction of emotional distress
(hereinafter the “state law claims”); those claims were not dismissed because neither party
addressed them [Doc. 65 at p. 14].
Defendants now contend their prior argument that “all the allegations” were covered
by Title VII was intended to include the two state law claims and these claims are subject
to dismissal [Doc. 68 at pp. 2—3]. Alternatively, the defendants argue that, to the extent
these claims are pled in the alternative as claims under the Federal Tort Claims Act
(“FTCA”), the claims should be dismissed for failure to comply with the administrative
requirements for such claims [Id. at pp. 5—6]. Plaintiff has opposed the motion on the
grounds that defendants are trying to amend their previous motion and raise new arguments
[Doc. 70]. In reply [Doc. 71], defendants contend that their current arguments were

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The parties agreed to the dismissal of the TPPA claim [Doc. 52 at p. 20; Doc. 57 at p. 7].
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encompassed by the previous motion arguing for dismissal of “all” claims and further note
that they opposed the state law claims in their answer to the amended complaint.

II.

Analysis
Defendants cite both Fed. R. Civ. P. 59(e) and 60 in support of the motion. Rule

59(e) allows a court to alter or amend a judgment within 28 days of entry. Fed. R. Civ. P.
59(e). Rule 60 allows relief from a judgment for mistakes arising from “oversight or
omission” (Rule 60(a)); for mistake, inadvertence, surprise, or excusable neglect (Rule
60(b)(1)); or for any other reason that justifies relief (Rule 60(b)(6)). Fed. R. Civ. P. 60.
Because of the nature of the Court’s previous order, however, neither Rule provides relief
to the defendants.
The term “judgment” in Rule 59(e) only refers to final judgments or orders. Keith
v. Bobby, 618 F.3d 594, 597 (6th Cir. 2010); Moore v. Alstom Power Turbomachines, LLC,
No. 1:12-CV-292, 2013 WL 12192494, at *1 (E.D. Tenn. May 14, 2013); Butler v. United
Healthcare of Tenn., Inc., No. 3:07-CV-465, 2011 WL 3300674, at *1 (E.D. Tenn. Aug. 1,
2011). An order granting in part judgment on the pleadings while other claims remain
pending, as in the instant case, is not a final judgment. CGH Transport, Inc. v. Quebecor
World, Inc., 261 F. App’x 817, 823 n.10 (6th Cir. 2008); Moore, 2013 WL 12192494, at
*1 (“An order granting a partial dismissal of a plaintiff’s claims is not a final order that
permits the Court to entertain a Rule 59(e) motion”). Similarly, Rule 60(b) only applies to
final judgments and orders. Moore, 2013 WL 12192494, at *1; Butler, 2011 WL 3300674,
at *5. Therefore, defendants may not obtain relief through Rule 59(e) or Rule 60(b).
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Moreover, relief under Rule 60(a) would be inappropriate here because that
subdivision’s application is limited to clerical mistakes or oversights; it cannot be used to
correct substantive legal errors. Olle v. Henry & Wright Corp., 910 F.2d 357, 363—64
(6th Cir. 1990). The Court’s decision to deny summary judgment on two counts was not a
clerical error or oversight.
The Court will construe defendants’ motion as a motion to reconsider pursuant to
Fed. R. Civ. P. 54(b). 2 Rule 54(b) provides “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer
than all the parties ... may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” As the Sixth Circuit has stated,
“[u]ntil a district court enters a judgment, it may alter or amend any of its orders.” Jaynes
v. Austin, 20 F. App’x 421, 425 (6th Cir. 2001). Without standards in the rule itself or in
the local rules, see Johnson v. Dollar Gen. Corp., No. 2:06-CV-173, 2007 WL 2746952,
at *2 (E.D. Tenn. Sept. 20, 2007), motions for reconsideration under Rule 54(b) are at the
Court’s discretion. See Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x
949, 952 (6th Cir.), cert. denied, 543 U.S. 875 (2004).
Reconsideration of an interlocutory order is appropriate when there is (1) an
intervening change of controlling law; (2) new evidence available; or (3) a need to correct
a clear error or prevent manifest injustice. Id. at 959. Motions for reconsideration may

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The defendants reference Rule 54(b) in their concluding request for entry of a final judgment, but
they have not expressly cited Rule 54(b) as a vehicle for obtaining reconsideration of the Court’s
previous order [see Doc. 68 at p. 6].
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not, however, “serve as a vehicle to identify facts or raise legal arguments which could
have been, but were not, raised or adduced during the pendency of the motion of which
reconsideration was sought.” Madden v. City of Chattanooga, No. 1:08-cv-160, 2010 WL
670107, at *2 (E.D. Tenn. Feb. 19, 2010) (quoting Grozdanich v. Leisure Hills Health Ctr.,
Inc., 48 F. Supp. 2d 885, 888 (D. Minn. 1999)); see Hagerman v. Yukon Energy Corp., 839
F.2d 407, 414 (8th Cir.), cert. denied, 488 U.S. 820 (1988) (“Nor should a motion for
reconsideration serve as the occasion to tender new legal theories for the first time.”)
(quoting Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987)).
Defendants contend their previous argument that “all the claims … arise from the
employment relationship” and should be preempted by Title VII was intended to include
the two state law claims for intentional and negligent infliction of emotional distress.
Defendants seem to concede that they did not directly address the state law claims in their
original briefing – “[w]hile in retrospect it would have been better to delineate these two
claims separately… the United States … reasonably intended that all the allegations were
such that they should be subsumed into the Title VII claims … .” [Doc. 68 at p. 6].
Defendants have not identified an intervening change in controlling law or new evidence
on this issue. Thus, the question is whether the Court’s failure to discern defendants’
intended argument resulted in a clear error or manifest injustice or, alternatively, whether
defendants are raising a new legal theory for the first time.
Defendants’ opening brief on the previous motion argued, “even if the court
construed the 1983 style claims as arising under Bivens, in this case the individuals should
be dismissed, since all the claims pled in this complaint arise from the employment
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relationship” [Doc. 52 at p. 15]. In support of this argument, the defendant cited two cases
which stand for the proposition that “USPS employees may not allege Bivens claims arising
out of their employment relationship with the USPS” [Id. (citing Mitchell v. Chapman, 343
F.3d 811, 825 (6th Cir. 2003), cert. denied, 542 U.S. 937 (2004) and Silva v. Potter, 2006
WL 3219232, at *6 (M.D. Fla. Nov. 6, 2006))]. The authorities cited in support of
defendants’ position on the instant motion [see Doc. 68 at pp. 3—4] were not cited in
support of the previous motion. Neither Mitchell nor Silva address the instant argument –
whether state law claims such as intentional or negligent infliction of emotional distress
may be raised in an employment discrimination case against USPS; rather these cases
addressed the availability of relief for constitutional violations by federal officials. See
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“In Bivens … this Court ‘recognized for the
first time an implied private action for damages against federal officers alleged to have
violated a citizen’s constitutional rights’”) (citation omitted). Thus, this Court relied on
Mitchell in support of its conclusion that plaintiff’s constitutional claims could not proceed
[Doc. 65 at p. 13].
While the Court concludes that defendants’ instant position was not clearly made,
in fairness, the Court deems it to be an extension of the previous arguments, i.e., plaintiff’s
state law claims are also precluded by Title VII just as her constitutional claims are.
Defendants contend that the amended complaint contains no factual allegations regarding
the state law claims beyond those alleged in support of the discrimination claims [Doc. 68
at p. 3]. Thus, because plaintiff has not alleged an alternative right or injury beyond
discriminatory treatment, defendants contend that the claims are preempted by Title VII
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[Id. at pp. 3—4]. It is worth noting that plaintiff has not provided a substantive rebuttal to
this argument, only complaining that the issue was not previously raised and should
therefore be considered waived [Doc. 70 at p. 2]. Defendants reply that these arguments
were preserved via their answer to the amended complaint [Doc. 71 at p. 1 (citing Doc.
44)].
The Sixth Circuit has consistently held that Title VII is the exclusive remedy for
claims of discrimination in federal employment and has dismissed claims under other
discrimination or civil rights statutes. Briggs v. Potter, 463 F.3d 507, 517 (6th Cir. 2006)
(“Federal employees must rely upon Title VII and other federal antidiscrimination statutes
… as the exclusive remedy for combating illegal job discrimination”); Davis v. Runyon,
142 F.3d 433, 1998 WL 96558, at *5 (6th Cir. Feb. 23, 1998) (holding that Title VII
preempts claims under 42 U.S.C. § 1981 and Ohio discrimination statute). However, the
Sixth Circuit has not specifically addressed whether Title VII preempts state law claims
such as those at issue here. See Kuklinski v. Lew, No. 3:14-cv-00843-CRS-DW, 2017 WL
360920, at *4 (W.D. Ky. Jan. 24, 2017) (“The Sixth Circuit has not yet specifically
addressed the issue of whether Title VII preempts claims that arise out of facts and
circumstances that seek to address injuries other than workplace discrimination”). Further,
the Court notes that circuit and district courts around the country are divided on this issue.
Cf. Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) (Title VII is “not the
exclusive remedy for federal employees who suffer ‘highly personal’ wrongs”); Ethnic
Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1414—16 (D.C. Cir.
1985) (federal employees may sue for “constitutional violations against which Title VII
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provides no protection at all”); with Pfau v. Reed, 125 F.3d 927, 933—34, n.2 (5th Cir.
1997), vacated on other grounds, 525 U.S. 801 (1998) (“So long as the factual predicate
of a claimant’s non-Title VII claims is the same as the factual predicate for the claimant’s
Title VII claims against a federal agency, we are bound to conclude that Title VII preempts
the non-Title VII claims”); Mathis v. Henderson, 243 F.3d 446, 450—51 (8th Cir. 2001)
(following Pfau); Mobley v. Donahoe, 498 F. App’x 793, 797 (10th Cir. 2012) (following
Mathis).
Defendants rely on Wallace v. Henderson, 138 F. Supp. 2d 980 (S.D. Ohio 2000) in
support of their position. In Wallace, the court noted that Title VII provides the exclusive
remedy for discrimination claims in federal employment. Id. at 983. The court then noted
that the claim for intentional infliction of emotional distress “presents a more difficult
question” and reviewed the case law in which courts have found claims that, although
arising out of the same facts and circumstances, seek to remedy injuries other than
workplace discrimination and are not preempted by Title VII. Id. at 984—85. Critically,
the Wallace court concluded:
While the Supreme Court has expressed that Title VII provides the exclusive
judicial remedy for discrimination in the federal workplace, the Court has
found no indication that it intended to preclude plaintiffs from bringing
claims which, although based on the same facts and circumstances as the
Title VII claim, are based on a violation of a distinct and independent right.
…To hold that such claims are precluded by Title VII would deprive
plaintiffs of a remedy for injuries which are not addressed by that statute.
Accordingly, to the extent that Plaintiff’s intentional infliction of emotional
distress claim is the result of retaliation in his workplace, that state law claim
must be DISMISSED, as precluded by Title VII. However, to the extent that
his intentional infliction of emotional distress claim seeks redress for a
‘highly personal injury,’ beyond discrimination or retaliation … his claim
remains.
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Id. at 987 (citation omitted); see Heimberger v. Pritzker, No. 2:12-CV-01064, 2014 WL
1050341, at *9 (S.D. Ohio Mar. 17, 2014) (“not all claims based on workplace conduct are
subsumed by Title VII”); Charlot v. Donley, No. 3:11-579-MBS-SVH, 2012 WL 3264568,
at *5 (D.S.C. Aug. 9, 2012) (“With regard to federal employment discrimination, Title VII
claims do not preempt common law torts of a highly personal nature, …even if both claims
arise from the same set of facts”).

Defendants contend that the instant case is

distinguishable from Wallace because the factual allegations of the state law claims are the
same as the facts supporting the discrimination claims and plaintiff has not alleged an
alternative right or injury [Doc. 68 at p. 4].
The Court has carefully reviewed the authorities cited above on this issue and finds
that the lack of distinguishing factual allegations in support of plaintiff’s state law claims
is dispositive of this issue. 3 As to the claim for negligent infliction of emotional distress,
the amended complaint alleges defendants “outrageously breached the duty they owed
Plaintiff not to discriminate or retaliate against her due to her race, sex or for engaging in
the protected activity of refusing to go along with or not report illegal activity against her
or of which she became aware and reported” [Doc. 41 at ¶ 48]. As to the claim for
intentional infliction of emotional distress, the amended complaint alleges “[t]he
intentional/willful/malicious conduct by all those Defendants proximately caused Plaintiff
Every severe emotional distress” [Id. at ¶ 50]. In short, the support for plaintiff’s claims

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The Court expresses no opinion as to whether such claims could proceed under different factual
circumstances.
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of intentional and negligent infliction of emotional distress is solely the defendants’ alleged
discriminatory and retaliatory conduct. Plaintiff has alleged no personal harm or injuries
that are distinct and independent from her discrimination claims. See Roe v. Gates, No.
303cv192, 2009 WL 3063393, at *15 (S.D. Ohio Sept. 21, 2009) (claim of intentional
infliction of emotional distress is precluded by Title VII because it is not based on a
violation of distinct and independent right); Roland v. Potter, 366 F. Supp. 2d 1233, 1236
(S.D. Ga. 2005) (the intentional infliction of emotional distress claim is “wholly derivative
from the alleged conduct giving rise to [her] Title VII claims”) (quoting Chergosky v.
Hodges, 975 F. Supp. 799, 801 (E.D.N.C. 1997)). Thus, the Court finds that plaintiff’s
state law claims, as alleged, are preempted by Title VII and should be dismissed. 4

III.

Conclusion
For the reasons set forth herein, the defendants’ motion to alter or amend judgment

[Doc. 67] will be GRANTED and the remaining state law claims will be DISMISSED.
An appropriate order will be entered.

s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE

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In light of this conclusion, the Court need not address defendants’ arguments regarding the
applicability of the Federal Tort Claims Act [see Doc. 68 at pp. 5—6].
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