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finding that because, unlike in Truman, the underlying conduct included "words accompanied by threatened and actual offensive contact", the United States could not be liable for intentional infliction of emotional distress
Summary of this case from Lewis v. NapolitanoOpinion
CIVIL ACTION NO. 02-3802 SECTION "K" (3)
March 4, 2004
MEMORANDUM OPINION AND ORDER
Defendant, John E. Potter, United States Postmaster General, on behalf of the United States Postal Service has filed a Motion to Dismiss and Alternatively for Summary Judgment dismissing the plaintiff's claims, pursuant to Rules 12(b)(1), 12(b)(6) and 56 of the Federal Rules of Civil Procedure. Plaintiff, Shannon A. Dardar, filed formal a opposition memorandum to which the Government formally replied. This matter is before the undersigned Magistrate Judge pursuant to the parties' consent. This Court conducted an oral hearing with respect to the aforesaid motion on March 3, 2004, following which defendant's motion was deemed submitted for decision. For the following reasons, the defendant's motion is GRANTED.
Consent to Proceed before a United States Magistrate Judge dated July 18, 2003 [Rec. Doc. No. 17].
I. STATEMENT OF THE ISSUES
Defendant contends that the plaintiff's claims should be summarily dismissed with prejudice for the following reasons, to wit:
• lack of standing to sue under Title VII, 42 U.S.C. § 2000e-16;
• lack of standing to sue under 42 U.S.C. § 1981;
• lacks of jurisdiction over the plaintiff's claims concerning any and all torts arising out conduct constituting assault, battery and/or interference with contract rights due to sovereign immunity pursuant to 28 U.S.C. § 2680(h); and
• lacks of subject matter jurisdiction over the plaintiff's contractual claims pursuant to the Tucker Act, 28 U.S.C. § 1346 et seq. and the Contracts Disputes Act, 41 U.S.C. § 602(a)(2), which preempts the general jurisdictional provision of the Postal Reorganization Act, 39 U.S.C. § 409(a).
More specifically, defendant contends that: (1) plaintiff's allegation of gender discrimination is not legally cognizable under Title VII because the plaintiff was at all pertinent times an independent contractor and not an agency "employee"; (2) plaintiff lacks standing to sue under 42 U.S.C. § 1981 for the reasons that plaintiff has not alleged any claim related to race and that the federal government is immune from suit under § 1981; (3) plaintiff's claim of damages for intentional infliction of emotional distress arises out of the principal conduct constituting the torts of assault, battery and tortious inference with contract, all of which conduct is specifically excepted from the Government's waiver of sovereign immunity pursuant to the Federal Tort Claims Act as set forth in 28 U.S.C. § 2680(h); and (4) the district court lacks subject matter jurisdiction over the plaintiff's breach of contract claim pursuant to 28 U.S.C. § 1346, which restricts the district court's concurrent jurisdiction to claims against the United States not exceeding $10,000.00 and the Contract Disputes Act, 41 U.S.C. § 602(a)(2), which preempts the general grant of jurisdiction under 39 U.S.C. § 409(a). To the extent that the defendant has relied on matters outside of the record, the defendant has moved alternatively for summary judgment; accordingly, either or both standards may be applied as circumstances warrant.
Plaintiff concedes that she has failed to state a claim under 42 U.S.C. § 1981 and, although she contends that her contract was breached and claims $50,000.00 in damages, plaintiff submits that she has made no contract claim in this suit. With respect to her Title VII claims, plaintiff submits that she qualifies as an "employee," highlighting one irregularity report noting several violations of the provisions of her contract regarding "protection of mail" ( i.e., "leaving items of mail unsecured in the open bed" and "totally unattended"). The same report also mentioned a major route deviation and deviating from the 1/2 hour lunch break without authorization. On that note, plaintiff premises her argument that the defendant controlled the details and the manner and means in which she performs her work and argues that the Court should conclude that she is an "employee" within the meaning of the law. Turning to her claim under the FTCA, plaintiff submits that her claim for emotional distress is premised on the fact that" Webb harassed her by making grabbing actions like he was going to grab her breasts. . . ." Notwithstanding the fact that she has alleged conduct constituting assault and battery, plaintiff submits that her tort claim is for intentional infliction of emotional distress and not for assault and battery. In summary, the plaintiff contenda that the her claims pursuant to Title VII and the FTCA are not jurisdictionally deficient and that this Court should deny the Government's motion.
See plaintiff's Memorandum in Opposition to Motion to Dismiss and/or for Summary Judgment at p. 7.
See id. at p. 16.
See id. at pp. 8-9; Contract Route Irregularity Report dated 6/17/03 (plaintiff's unmarked exhibit).
See plaintiff's Memorandum in Opposition at pp. 8-9; Contract Route Irregularity Report dated 6/17/03 (plaintiff's unmarked exhibit).
See plaintiff's Memorandum in Opposition at p. 15.
See id. at pp. 4-5.
See id at p. 15.
II. PROCEDURAL BACKGROUND AND UNDISPUTED FACTS A. plaintiff's Complaint
On December 24, 2002, plaintiff, Shannon Dardar ("Dardar"), filed the captioned matter against John E. Potter, in his official capacity as Postmaster General of the United States Postal Service ("USPS"), alleging sexual harassment by Ronald Webb (" Webb"), an employee of the USPS who worked in the Mandeville Post Office, out of which office Dardar worked as a contract carrier. Via first amended complaint, the plaintiff alleged violations of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and the Federal Tort Claims Act, 28 U.S.C. § 1346, 2401 and 2671. Nominally, the plaintiff's claims include sexual harassment, disparate treatment, intentional infliction of mental or emotional distress and economic damages. The conduct alleged includes uninvited vile language, lewd and lascivious propositions and gestures, grabbing at plaintiff's breasts, cornering the plaintiff, actual offensive touching, and interference with her contract with the Postal Service, as well as threatened interference and making the performance of her rural route mail delivery contract more onerous and difficult.
See plaintiff's Original Complaint at ¶¶ 1, 4, 12-13 [Rec. Doc. No. 1].
See plaintiff's Amended Complaint [Rec. Doc. No. 10].
B. Rural Route Contract Mail Carrier
Plaintiff was initially employed as a casual clerk at the Mandeville, Louisiana Post Officer from December 23, 1997 until May 24, 1998, when she resigned from her position with the United States Postal Service ("USPS"). The conduct referred to above did not commence until months thereafter, when plaintiff submitted a bid on a contract rural carrier route out of the same post office and was awarded a $40,000.00 contract to deliver mail for the Postal Service.Beginning in August or September, 1998 and continuing through at least September 2001, plaintiff delivered mail for the USPS pursuant to the aforesaid contract to perform services as Highway Contract Rural Carrier. The existence of this contract was widely known among the employees of the Mandeville Post Office, including other Highway Contract Rural Carriers and Mr. Ronnie Webb (" Webb"). Webb was Supervisor of Customer Service and also acted as Officer in Charge ("OIC") of the Mandeville Post Office, pursuant to a temporary appointment for the period from September 1, 2001 until December, 2002.
See Defendant's Request for Admission No. 1 and plaintiff's Response [Defendant's Exh. "A"].
See id, at Item No. 2.
See plaintiff's Complaint at ¶ 13; plaintiff's First Amended Complaint at ¶ 16; Declaration of Ronald Webb (hereinafter "Webb Declaration") at ¶¶ 1-2, 21 [Defendant's Exh. "B"].
Dardar's contract required that she sort, case and deliver the mail. Pursuant to the contract, plaintiff was also responsible for providing her own transportation. Additionally, all expenses incurred in carrying out her duties under the contract, including the cost of the vehicle, as well as its maintenance and insurance, were the plaintiff's responsibility under the contract. There was no provision under the contract for any retirement, health, or employment benefits of any kind and the plaintiff received no such benefits. No taxes including FICA or FUTA were withheld from the plaintiff's pay for mail delivery services. Rather, Dardar's compensation was based on a predetermined formula stipulated in her contract, i.e., her compensation remained the same whether it took six or sixteen hours to deliver her route on a given day. The extent to which management at the Mandeville Post Office regulated the manner in which Dardar performed her contract work consisted of (a) established times for reporting and going out/returning from delivering mail on the street, and (b) a standing order to case and deliver all of the mail for her route every day. Unlike a regular carrier employee of the Postal Service, Dardar did not submit and could not submit a PS Form 1571 for auxiliary assistance to anyone in management at the Mandeville Post Office. Plaintiff was responsible for procuring substitutes to perform the contractual services in the event that she was unable, for any reason, to perform mail delivery-services with respect to her route.
See Request for Admissions Items 2-4; plaintiff's Responses [Defendant's Exh. "A"]; Contract [Defendant's Exh. "C"].
See id at Item 5; plaintiff's Response.
See id at Item 6; plaintiff's Response.
See id at Items 7, 11; plaintiff's Responses.
See id at Items 8, 9, 10; and plaintiff's Responses thereto at Items 8, 9 and 10.
See Request for Admission at Item 10; plaintiff's Response [Defendant's Exh. "A"]; see also Webb Declaration at ¶¶ 5-6 [Defendant's Exh. "B"].
Plaintiff alleges that, when her status changed to contract carrier, Webb began harassing her with unsolicited crude statements, gestures with sexual overtures, sexual propositions, offensive assault on her person by cornering her on one occasion, threatened offensive contact by attempting to grab at her breasts, which she avoided by backing away, and by actually grabbing her arm on one occasion. She further alleges that Webb interfered with her contract by refusing to forward a route extension request to the Postal Service Contract Office. Dardar alleges that all of these intentional actions made the performance of her contract more difficult and caused her suffer severe mental and emotional distress regarding her position and remuneration owed under her contract. Plaintiff submits that she suffered economic loss of approximately $50,000 in lost mileage on her contract as a direct result of Webb's conduct.
See plaintiff's First Amended Complaint at ¶¶ 17-24; Requests for Admissions and plaintiff's Responses at Items 12, 14-23 [Defendant's Exh. "A"].
On September 30, 2001, Dardar wrote Postmaster Charlie Specialie of the Mandeville Post Office claiming that she had been sexually harassed by Webb from September of 1998 through August 30, 2001. An administrative inquiry was requested on September 28, 2001 and was conducted during the month of October, 2001. The investigative report issued on October 22, 2001. Dardar exhausted her administrative claims with the Postal Service under both the EEO and FTCA regimes, seeking damages for gender discrimination in employment and for torts including assault, battery, interference with contract, and intentional infliction of emotional distress. On September 27, 2002, the EEO Final Agency Decision issued, denying her EEO complaint for failure to state a claim. The finding was based upon the determination that Dardar was not an agency employee and therefore lacked standing as an aggrieved person under Title VII. plaintiff's administrative claim under the FTCA was also denied by the Postal Service. On June 20, 2003, plaintiff filed her first amended complaint so as to include her claims pursuant to the FTCA, since she had exhausted her administrative remedies with respect to those claims.
See Correspondence dated August 30, 2001 [Defendant's Exh. "E"].
See Fact Finding Report and EEO Investigative Report [Defendant's Exhibit "3" in globo].
See Final Agency Decision dated September 27, 2002 [Defendant's Exhibit "H"].
See plaintiff's Affidavit of Claim under the FTCA [Defendant's Exh. "I"]; Final Denial of Administrative Claim dated May 1, 2003 [Defendant's Exh."J"].
[Rec. Doc. No. 14].
III. APPLICABLE STANDARDS A. Motion to Dismiss
When ruling on a motion to dismiss, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the pleading party. The complaint should only be dismissed if it appears beyond doubt that the pleading party can prove no set of facts in support of the claims raised that would entitle her to relief. The question is whether in the light most favorable to the plaintiff and with every doubt resolved in her behalf, the complaint states any valid claim for relief.Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move to dismiss an action for lack of subject matter jurisdiction. On a motion brought under Rule 12(b)(1), which the Court must consider before any other challenge, the court must dismiss a cause for lack of subject matter jurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case."
See Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994).
Home Bidders Association of Miss. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks omitted).
A Rule 12(b)(6) dismissal is proper where the plaintiff can prove no set of facts which entitle her to relief Although there are exceptions to the mandate, generally a court should consider only the pleadings when deciding a Rule 12(b)(6) motion to dismiss. When a court considers matters outside of the pleadings, Rule 12(b) requires that the motion be treated as if it were one for summary judgment and that the matter be disposed of as provided in Rule 56.
See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom, Cloud v. United States, 536 U.S. 960 (2002).
B. Summary Judgment
The principal purpose of Fed.R. CIV. P. 56 is to "isolate and dispose" of factually unsupported claims. Summary judgment is proper where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. . . ." There is no "genuine issue" when the record taken as a whole could not lead a rational trier of fact to find for the nonmovant.
" Celotex Corp. v. Catrettt 477 U.S. 317, 323 (1986).
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Summary judgment will be granted against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." A complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. "In such a situation, there can be `no genuine issue of material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'
Celotex, 477 U.S.at 323.
Nebraskav. Wyoming, 507 U.S. 584, 590 (1993); Celotex, 477 U.S. at 323; Wenner v. Texas Lottery Commission, 123 F.3d 321, 324 (5th Cir.), cert. denied. 523 U.S. 1073 (1998).
Celotex, 477 U.S. at 322-23.
The Court has no duty to search the record for triable issues. Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Conclusory statements, speculation and unsubstantiated assertions are not competent summary judgment evidence and will not suffice to defeat a properly supported motion for summary judgment. "Summary judgment is appropriate in any case `where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.'"
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Celotex, 477 U.S. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993).
Ragas, 136 F.3d at 458 (emphasis added).
Id. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).
Little v. Liquid Air Corp., 37 F.3d 1069, 1075-76 (5th Cir. 1994) ( citing Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993)).
IV. ANALYSIS A. Title VII Standing/Jurisdiction
Title 42 U.S.C. § 2000e-16, entitled "Employment by the Federal Government," provides that "all personnel actions affecting employees or applicants for employment . . . in the United States Postal Service . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." By its terms, § 2000(e)-16(a) allows only "employees" or "applicants for employment" to file suit against a federal agency under Title VII.Absent an employer-employee relationship between the plaintiff and the defendant, the aggrieved plaintiff does not have standing to bring a Title VII claim of discriminatory treatment as an employee." The question of the plaintiff's status as an "employee" under Title VII as opposed to an independent contractor is a question of federal law. Because Title VII defines an "employee" as "an individual employed by an employer," the Fifth Circuit has adopted the "hybrid economic realities/common law control test" to determine whether an aggrieved plaintiff is an employee within the meaning of Title VII.
See Diggs v. Harris Hospital-Methodist Inc., 847 F.2d 270, 272 (5th Cir.), cert. denied, 488 U.S. 956 (1988); Broussard v. L.H. Bossier Inc., 789 F.2d 1158, 1159 (5th Cir. 1986); Heckler v. Product Development Corp., 2003 W.L. 22961214 at * 2 (N.D. Tex.); Johnson v. Crown Enterprises, Inc., 294 F. Supp.2d 850, 854 (M. D. La. 2003) (Polozola, J.); Elie v. Hilton, 131 F. Supp.2d 835, 837(W. D. La.2001)(Little, J.); Arbaugh v. YH Corporation, 2003 WL 1797893 ** 5-6 (E. D. La.) (Shushan, M. J.).
Uden v. Oktibbeha County, Mississippi, 246 F.3d 458, 465 (5th Cir.), cert. denied, 534 U.S. 948 (2001); Caulderon v. Martin County, 639 F.2d 271, 272-73 (5th Cir. 1981).
" See Diggs, 874 F.2d at 272; Broussard, 789 F.2d at 1159; Mares v. Marsh, 777 F.2d 1066, 1067-68 (5th Cir. 1986) (adopting the eleven-factor test first set forth in Spirides v. Reinhardt, 613 F.2d 826 (D.C. Cir. 1979)); Taylor v. Eastside Auto, Truck and Tire Repair, 2001 WL 214032, * 2 n. 26 (E. D. La.) (Africk, M. 1); Cole v. Venture Transport, Inc., 2000 WL 335743, * 3 (E. D. La.) (Vance, J.).
Although the Fifth Circuit has consistently held that the most important factor in the inquiry is whether the alleged employer controls the manner and means of the worker's performance ( i.e., the right to control), that factor, standing alone, is not determinative. The factors pertinent to the inquiry as to the "right to control" include ownership of equipment used to perform the job, responsibility of costs of maintaining that equipment (such as licensing and taxes), length of employment period, payment methods, and directives on schedules and how the work is to be performed.
See Broussard, 789 F.2d at 1160; Mares, 777 F.2d at 1067. E.g., Bloom v. Bexar County, Texas, 130 F.3d 722, 726 (5th Cir. 1997).
Broussard, 789 F.2d at 1160; Mares, 777 F.2d at 832-33.
However, the right to control alone is not determinative. The economic realities component of the test examines other relevant factors, to wit: (1) the kind of occupation, with reference to whether the work is generally done under the direction of a supervisor or without supervision; (2) the skill required in the particular occupation; (3) whether the "employer" or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether hourly or by the job; (6) the manner in which the work relationship is terminated, i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the "employer"; (9) whether the worker accumulates benefits; (10) whether the "employer" pays social security taxes; and (11) the intention of the parties. Suffice it to say, "the test requires a court to carefully consider the particular facts of each case, rather than using any general formulas, in order to determine the nature of the labor relationship at issue."
Mares, 777 F.2d at 832-33 ( quoting Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C. Cir. 1979)). See e.g., Bloom, 130 F.3d at 726 n. 3; Deal v. State Farm Mutual Ins. Co., 5 F.3d 117, 119 (5th Cir. 1993).
Steehler v. Product Development Corp., 2003 WL 21528523 (N.D.Tex.)(Buchmeyer, J.).
Having considered the undisputed facts of this case, this Court concludes that there is no genuine dispute of material fact that Dardar was an independent contractor at all pertinent times. More particularly, plaintiff delivered mail under a contract administered out of Dallas, Texas. Her position was characterized as Highway Contract Rural Carrier and was for a set duration as prescribed in the contract. Remuneration pursuant to the contract was predicated on the most efficient route, as well as a predetermined formula based upon mileage and the amount of mail delivered; thus the contract carrier (Dardar) was paid the same regardless of the time it took to provide mail service on her rural route. An administrative official in the regional post office assessed whether or not the contract is carried out.
Dardar did not earn leave and, if assistance was needed, as in the case of all rural route contracted carriers, the plaintiff was required to make her own arrangements for a replacement. She was responsible for providing her own transportation to fulfill her obligations under the contract, including providing maintenance and insurance on her own delivery vehicle. Dardar accrued no retirement, health or employment benefits of any kind. No taxes or amount of any nature was withheld from the plaintiff's contractual remuneration. Moreover, there was no apparent intent to form an employer-employee relationship. The "Contract Route Irregularity Report" memorializing Dardar's violation of her stipulated contractual duties — i.e., "Violation to Contract B-7 #C Protection of mail" — compel no other conclusion. plaintiff's contract requires that she protect the mail at all times while out on delivery. Moreover, the contract stipulates the times by which she is required to start and progress upon her route, the route itself, and the Postal Service's right to cancel the contract for material breach of any requirement or clause of the contract ( i.e., for non-compliance). General oversight to ensure compliance with contract specifications is not synonymous with supervision and control over the manner and means of Dardar's performance.
See Contract at Section B.3 entitled "Sanctity of the Mail" [Defendant's Exhibit "C"].
See id at Section B. 1 entitled "Schedule, Frequency and Service Requirements"and Section H.5 entitled "Events of Default"
Considering all of the relevant factors adopted by the Fifth Circuit in Mares, supra — most of which were not addressed by the plaintiff — the balance is weighs decidedly in favor of the conclusion that the plaintiff does not qualify as an "employee" within the meaning of the applicable law. The question before this Court is not whether every speck of evidence supports the conclusion that the plaintiff was an independent contractor. Rather, it is sufficient that this Court find that there is no material issue of fact as to the plaintiff's status as an independent contractor. Having so found, the plaintiff is without standing to bring a Title VII employment discrimination claim.
B. § 1981 Standing/Jurisdiction
42 U.S.C. § 1981 states that "[a]ll persons within the jurisdiction of the United States shall have-the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . .' 154 In 1991, Congress amended this statute to include the additional provision that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Section 1981 derives from the Civil Rights Act of 1966 and was intended to eradicate all discrimination against blacks and to secure their full freedom and equality in civil rights; therefore racial animus is a necessary element of a claim under this section. Plaintiff does not allege discrimination based upon race.
The Fifth Circuit has long recognized that suits against the United States under the civil rights statutes are barred by the doctrine of sovereign immunity except where explicitly waived. Simply stated, the plain text of § 1981 compels the conclusion that it is inapplicable to discrimination which is based upon allegations wholly unrelated to race. Additionally the federal government is not subject to suit under § 1981. As such, the Court is without jurisdiction and, in any event, the plaintiff concedes that she has failed to state a claim under 42 U.S.C. § 1981.
See Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Marsaw v. Trailblazer Health Enterprises, LLC, 192 F. Supp.2d 737, 744 n. 7, 750 (S.D. Tex. 2002) (Kent, J.).
C. Federal Tort Claims Act (FTCA) Standing/Jurisdiction
The defendant argues that the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, 2671 et seq., is the exclusive vehicle for bringing state law tort claims against governmental agencies and therefore this Court lacks jurisdiction over the state tort law claims alleged against the Postmaster General, given that Dardar has not named the United States as a defendant and because the waiver of sovereign immunity does not apply to the offensive conduct at issue.
The Federal Tort Claims Act provides a remedy for claimants against the United States for damage to or loss of property, as well as personal injury or death caused by the negligence of a government employee acting within the course and scope of his or her employment. The FTCA specifically states that a plaintiff's exclusive course of action under the FTCA is against the United States and grants federal employees absolute immunity from common law tort actions by providing for the substitution of the United States as the sole defendant in such actions. Absent a waiver, sovereign immunity shields the federal government, its agencies and employees from suit. Because sovereign immunity is jurisdictional in nature, neither the Postal Service, nor the Postmaster General are appropriate defendants under the limited waiver set forth in the FTCA; therefore the plaintiff lacks standing and the case must be dismissed for lack of subject matter jurisdiction.
FDIC v. Meyer, 510 U.S. 471, 475 (1994).
Even if Dardar could cure the foregoing defect by amending her Complaint to name the United States as the proper party defendant, her assault and battery claims against the government would remain infirm for the second reason set forth by the defendant. In particular, the waiver of immunity contained in the FTCA does not apply to conduct which, in essence, constitutes the claims of assault, battery or interference with contract rights. Pursuant to Circuit precedent, the plaintiff cannot evade the reach of exceptions set forth in § 2680(h) by nominally characterizing her claim as one for tort of intentional infliction of emotional distress (IIED) or negligent supervision of the offending employee, because the FTCA bars a claim based on the conduct that constitutes a tort listed in section 2680(h), even though that conduct may also constitute another tort. The Fifth Circuit cogently summarized and explained the applicable law as follows:
See 28 U.S.C. § 2680(h); see also United States v. Shearer, 473 U.S. 52, 54 (1985); Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994).
"See Truman, 26 F.3rd 592, 594-95 (5th Cir. 1994) ( citing Garcia v. United States, 776 F.2d 116 (5th Cir. 1985)).
To determine whether a claim is one "arising out of any of these enumerated torts [which are excepted by § 2680(h) from the FTCA's reach], we focus on the conduct upon which the plaintiff's claim is based. If the conduct upon which a claim is based constitutes a claim "arising out of any one of the torts listed in section 2680(h), then the federal courts have no jurisdiction to hear that claim. United States v. Neustadt, 366 U.S. 696 (1961); Commercial Union Ins. Co. v. United States, 928 F.2d 176, 178-79 (5th Cir. 1991). Even if a plaintiff styles a claim so that it is not one that is enumerated in section 2680(h), the plaintiff's claim is still barred "when the underlying governmental conduct `essential' to the plaintiff's claim can fairly be read to `arise out of conduct that would establish an excepted cause of action." McNeily, 6 F.3d at 347 ( citing Atorie, 942 F.2d at 958). Thus, the FTCA bars a claim based on conduct that constitutes a tort listed in section 2680(h), even though that conduct may also constitute another tort not listed in section 2680(h). Similarly, a plaintiff cannot circumvent the purpose of section 2680(h) by "framing his complaint in terms of [the government's] negligent failure to prevent the excepted harm." Id. at 347. Thus we held in Garcia v. United States. 776 F.2d 116 (5th Cir. 1985), that a plaintiff could not evade the reach of section 2680(h) by raising a claim for negligence in the supervision of a military recruiter who allegedly assaulted the plaintiff. For the purposes of section 2680(h), Garcia's negligence claim arose out of an assault and battery. Id. at 118.
Truman, 26 F.3d at 594-95.
For reasons set forth above, this Court does not have jurisdiction over the plaintiff's tort claims, inasmuch as the alleged conduct essential to and comprising plaintiff's claim of intentional infliction of emotional/mental distress ("IIED"), when fairly read, constitute the torts of assault, battery and/or tortious interference with contract — all of which are excepted by § 2680(h) — as more fully explained herein.
The instant is distinguishable from Truman, supra In that case, a claim of intentional infliction of emotional distress was filed against an Air Force Base employee and the United States under the FTCA. In Truman, the plaintiff alleged that the defendant made numerous sexual insults, comments and innuendos that damaged her and caused her to suffer mental anguish, anxiety, embarrassment and humiliation, IIED. Finding that some offensive contact is an essential element of the tort of battery and that the plaintiff alleged no offensive contact either directly or indirectly resulting from the defendant's actions, the Court held that a battery did not occur. Thus the plaintiff's IIED claim could not be fairly characterized as arising out of a conduct which constitutes a battery. As to the tort of assault, the court noted that words alone cannot make a person liable for assault, unless those words, together with other circumstances, place the plaintiff "in reasonable apprehension of imminent harmful and offensive contact." Because the plaintiff in Truman did not allege that the defendant's acts placed her in imminent apprehension of harmful or offensive contact, nor did the plaintiff claim that any of the defendant's offensive comments, together with other circumstances, placed her in reasonable apprehension of imminent offensive contact, the Truman court found that the plaintiff's claim did not arise out of conduct constituting an assault.
" Id. at 595.
Truman, 26 F.3d at 595.
Id.
Unlike Truman, plaintiff alleged that Webb cornered her in her workspace, grabbed her by the arm and made offensive comments accompanied by grabbing gestures (as if he were going to touch her breast). Plaintiff has further alleged that often she had to either apprehend Webb's offensive gestures or back away to prevent offensive touching. Suffice it to say, plaintiff's allegations demonstrate that Webb's conduct, including words accompanied by threatened and actual offensive contact, placed her in imminent apprehension of harmful contact (assault) and/or actual offensive contact (battery). Such conduct constitutes assault and/or battery and not mere words. There can be no liability against the United States for IIED for actions "arising out of' conduct excepted under the FTCA.
See Stidham v. United States. 2000 WL 1171122 (E.D. La.) (Porteous, J.) (distinguishing Truman. supra), affirmed, 252 F.3d 434 (5th Cir. 2001).
The Court now addresses the plaintiff's claim of tortious interference with her Postal Service contract. plaintiff's claims of emotional distress because of Webb's alleged refusal to forward her requests for route extensions to the contract administrators, all of which caused her to suffer unnecessary hardship/monetary loss, made the performance of her contractual obligations more difficult and/or caused the breach of her contractual duties. The alleged conduct supports a claim for tortious interference with contract under Louisiana law, an excepted tort under § 2680(h). Therefore, such conduct cannot simultaneously constitute a viable claim for IIED against the government. Moreover, absent the outrageous conduct complained of, which support claims for assault, battery and tortious interference with contract, the plaintiff's IIED claim fails to rise to the level of extreme and outrageous conduct required under Louisiana law.
See White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991).
In summary, Dardar's claims against the USPS are controlled by the FTCA. Under the FTCA, the plaintiff must sue the United States rather than a federal employee or agency. Moreover, her claim for IIED arises out of conduct which comprise tort claims specifically excepted by the FTCA. Therefore, the plaintiff lacks standing and, alternatively, this Court lacks subject matter jurisdiction.
D. Contractual Claim Standing/Jurisdiction
Plaintiff alleges that she has incurred damages amounting to $50,000.00 due to Webb's failure to correct the mileage on her contract. USPS has also moved to dismiss this claim for lack of jurisdiction. Although in her opposition memorandum, plaintiff contends that she has stated no claim sounding in contract, a fair reading of the complaint admits the opposite conclusion. For purposes of completeness, the Court addresses the plaintiff's claim for contractual damages and the potential jurisdictional bases for such claim serially below.
Dardar asserts that jurisdiction over this action exists under 28 U.S.C. § 1331 and 1339. Section 1331 simply provides that the "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States;" section 1339 provides that the "district courts shall have jurisdiction of any civil action arising under any Act of Congress relating to the postal service." 28 U.S.C. § 1331, 1339. Neither one of these statutes provide an independent basis of subject matter jurisdiction. Rather, § 1339 permits the postal service to sue and be sued provided that "a separate statute relating to the postal service affords a cause of action." Additionally, plaintiff does not state a claim that "aris[es] under" any Act of Congress. More particularly, this Court has previously addressed the plaintiff's Title VII, Section 1981 and FTCA claims finding lack of standing and/or subject matter jurisdiction. plaintiff's state law tort and contract claims do not suffice for purposes of providing subject matter jurisdiction sufficient to support a claim as to either § 1331 or § 1339.
Snapp v. United States Postal Service. 664 F.2d 1329, 1332(5th Cir. 1982); see also Roman v. United States Postal Service, 821 F.2d 382, 385 (7th. 1987); O'Connor v. Yezukevicz, 589 F.2d 16, 18 (1st Cir. 1978).
The Postal Reorganization Act ("PRA"), 39 U.S.C. § 401(1) and 409, has been held to constitute merely a general waiver of sovereign immunity and not a general grant of subject matter jurisdiction. In Hexamer, the Fifth Circuit noted "a split in the circuits" concerning the reach of this statute, but nevertheless concluded that the PRA did not confer subject matter jurisdiction in the case before it, involving USPS as a stakeholder in a garnishment proceeding.
See Hexamer v. Foreness, 981 F.2d 821, 823-24 (5th Cir. 1993).
See Kroll v. United States, 58 F.3d 1087, 1092 (6th Cir. 1995); People's Gas, Light Coke Co. v. United States Postal Service, 658 F.2d 1182 (7th Cir. 1981); Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir. 1987); O'Connor v. Yezukevicz, 589 F.2d at 18; Westwood Promotions v. United States Postal Service, 718 F. Supp. 690, 693 (N.D. Ill. 1989); Combined Communications Corp. v. United States Postal Service, 686 F. Supp. 663, 667-78 (M. D. Term.), affirmed, 891 F.2d 1221 (6th Cir. 1989) But see Licata v. USPS, 33 F.3d 259 (3d Cir. 1994); Continental Cablevision v. USPS, 945 F.2d 1434, 1437 (8th Cir. 1991).
Even assuming that the PRA generally confers subject matter jurisdiction in certain cases where the Postal Service is a party, the law of this Circuit is that the Contract Disputes Act ("CDA"), 41 U.S.C. § 601 et seq., vests exclusive jurisdiction over certain procurement contracts in the Agency Board of Contract Appeals or the United States Court of Federal Claims and preempts application of the PRA.
See Jackson v. Postal Service, 799 F.2d 1018, 1022 (5th Cir.), reh'g denied, 853 F.2d 717 (5th Cir. 1986).
The Contract Disputes Act of 1978, 41 U.S.C. § 601-613, applies to executive agency public contracts such as the transportation services contract in question. Section 602 of the CDA provides that:
See 41 U.S.C. § 602.
(a) Executive agency contracts Unless otherwise specifically provided herein, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of Title 28) entered by an executive agency for —
(1) the procurement of property, other than real property in being;
(2) the procurement of services,
(3) the procurement of construction, alteration, repair or maintenance of real property; or
(4) the disposal of personal property.
Id. (italized, holding and underlining emphasis added).
The CDA expressly states that USPS is an executive agency covered under its terms. Where it applies, the CDA is the exclusive remedy for a dispute against federal government agencies. The CDA plainly states that "[a]ll claims by a contractor against the government shall be in writing and shall be submitted to the contracting officer for a decision." A contractor may appeal an adverse determination to an agency board or it may bring an action directly in the United States Court of Claims.
Id. at § 601(2).
Id. at § 605(a)
Id. at §§ 605(c), 607, 609(1).
The rationale set forth by the Fifth Circuit in Jackson v. Postal Service, 799 F.2d 1018 (5th Cir. 1986) regarding a USPS procurement contract controls the disposition of the instant dispute, which involves a USPS contract for the procurement of services ( i.e., rural route mail delivery). The Jackson court observed:
Prior to the enactment of the Contract Disputes Act of 1978; 41 U.S.C. § 601-613, the district courts enjoyed concurrent jurisdiction over suits against USPS in eo nomine for breach of a USPS contract, regardless of the amount involved. 28 U.S.C. § 1339 39 U.S.C. § 409(a); see White v. Bloomberg, 501 F.2d 1379 (4th Cir. 1974, aff'g 360 F. Supp. 58 (D. Md. 1973); Butz Engineering Corp. v. United States, 499 F.2d 619, 204 Ct.Cl. 561 (1974); Grosso v. United States Postal Service, 438 F. Supp. 1231 (D.Conn. 1977); Kennedy v. United States Postal Service, 367 F. Supp. 828 (D. Colo. 1973), aff'd, 508 F.2d 954 (10th Cir. 1974); Gilmore v. United States, 6 Ct.Cl. 323 (1984), aff'd without opinion, 765 F.2d 163 (Fed. Cir. 1985).
With the enactment of the Contract Disputes Act, the Claims Court received exclusive jurisdiction to hearing any claim arising from breach of a USPS procurement contract covered by the Act. Thus to determine whether the district court could entertain plaintiff's claim for back rent, we must determine whether the subject lease was covered by the Contract Disputes Act. If the Act applies, only the Claims Court may hear this case, 28 U.S.C. § 1346(a)(2) and 1491(a)(2); if it does not apply, the district court has jurisdiction.
The Contract Disputes Act applies to any express or implied contract entered into by the USPS, 41U.S.C. § 601(2), for procurement of property other than real property in being. . . . The Contract Disputes Act applies to contracts entered into 120 days after November 1, 1978. As to contracts entered into before the effective date of the Act, "the contractor may elect to proceed under [the] Act with respect to any claim . . . initiated thereafter." P.L. 95-563, § 16, 92 Stat. 2391.
Jackson v. Postal Service, 799 F.2d 1018, 1022 (5th Cir. 1986) (all emphasis added).
A fair reading of the Jackson decision leads inexorably to the conclusion that jurisdiction over contractual claims governed by the CDA does not lie in the district court. There is overwhelming support in other circuits for the conclusion that the jurisdictional provision of the CDA, 49 U.S.C. § 609(a)(1), supplants the pre-existing provision of the PRA, 39 U.S.C. § 409(a), that otherwise placed jurisdiction in the United States District Courts.
See Jackson v. Postal Service, 799 F.2d 1018, 1022 (5th Cir. 1986); accord Campanella v. Commerce Exchange Bank, 137 F.3d 885, 890-91 (6th Cir. 1998).
See Campanella v. Commerce Exchange Bank, 137 F.3d at 890-91; A S Council Oil Co. v. Lader, 56 F.3d 234, 242 (D.C. Cir. 1995); United States of America v. J E Salvage Co., 55 F.3d 985, 987 (4th Cir. 1995); B B Industries, Inc. v. United States Postal Service, 185 F. Supp.2d 760, 764-65 (E. D. Mich. 2002); Tradesmen Intern., Inc. v. U.S. Postal Service, 234 F. Supp.2d 1191, 1197-98 (D. Kan. 2002); I-10 Indus try Associates, Inc. v. United Postal Service, 133 F. Supp.2d 194, 195 n. 1, 196-97 (E. D. N.Y. 2001); Four Star Aviation. Inc. v. United States Postal Service, 120 F. Supp.2d 523, 527-28 (D. V. I. 2000); Spodek v. United States, 26 F. Supp.2d 750, 754 (E. D. Pa. 1998); Consumers Solar Electric Power Corp. v. United States Postal Service, 530 F. Supp. 702, 705-07 (C. D. Ca., 1982). But see Wright v. United States Postal Service, 29 F.3d 1426. 1428 (9th Cir. 1994) (holding CDA does not eliminate subject matter jurisdiction for subcontractors' actions to establish equitable liens against USPS); Marine Coatings of Alabama, Inc. v. United States, 932 F.2d 1370, 1377 (11th Cir. 1991) (CDA does not supersede Admiralty Provisions).
In A S Council Oil Co. v. Lader, 56 F.3d 234 (D.C. Cir. 1995), the Federal Circuit noted that the CDA is "the paradigm of a `precisely drawn, detailed statute' that preempts more general jurisdictional provisions." Because plaintiff's' claims could only be characterized as ones "relating to" executive agency contracts covered by the CDA and that they failed to exhaust the jurisdictional remedies required for relief under the Act, the A S court concluded that the only appropriate action was to dismiss the case.
A S Council Oil Co. v. Lader, 56 F.3d at 242 (D.C. Cir. 1995) ( quoting Brown v. GSA, 425 U.S. 820, 834(1976)).
Id.
In B B Industries, Inc. v. United States Postal Service, 185 F. Supp.2d 760 (E. D. Mich. 2002), the court considered the issue of whether the CDA preempted claims against the Postal Service brought by mail transporters, who independently contracted with the United States Postal Service to transport mail by truck. The court held that while Congress waived sovereignty and allowed the USPS to sue and be sued in the PRA, the CDA trumps the PRA where the claim is "essentially contractual." The court explained that even the mail transporters' claim for violation of various postal regulations did not avoid the jurisdictional bar of the CDA, because the dispute, could have been resolved under the contract and contract principles uniquely within the expertise of the Federal Court of Claims. When examining competing jurisdictional bases, the issue is "to determine if the claim so clearly presents a disguised contract action that jurisdiction over the issue is properly limited to the Court of Claims."
B B Industries, Inc., 185 F. Supp.2d at 764-65.
United States v. J E Salvage Co., 55 F.3d 985, 988 (4th Cir. 1995) ( quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982)).
The plaintiff cannot avoid the jurisdictional bar of the CDA by alleging causes of action when this dispute obviously arises out of the contract. Dardar has in fact sought contractual damages in this case. "Effective enforcement of the jurisdictional limits of the CDA mandates that [this Court] recognize contract actions that are dressed in tort clothing."
J E Salvage Co., 55 F.3d at 987.
There is no doubt that Contract Disputes Act applies to the plaintiff's claims related to the performance of her rural route carrier contract and damages for breach. Thus, this Court does not have jurisdiction to hear the plaintiff's claims relating to the performance of her contract, modification of the contracted route or contractual remuneration/damages.
Regarding concurrent jurisdiction, the Little Tucker Act, 28 U.S.C. § 1346(a)(2), does not apply to this case because the plaintiff seeks more than $10,000.00. In this regard, the law of the Fifth Circuit is clear that the Federal Court of Claims has exclusive jurisdiction over a Tucker Act claim in excess of $10,000.00, and that, when a plaintiff seeks damages in excess of that amount against the United States, the district court has no jurisdiction to entertain the plaintiff's claims.
See Humphries v. Various Federal USINS Employees, 164 F.3d 936, 941 (5th Cir. 1999).
CONCLUSION
For the foregoing reasons, the defendant is entitled to the dismissal of the plaintiff's case in its entirety.
Accordingly,IT IS ORDERED that the defendant's Motion to Dismiss and/or Alternatively for Summary Judgment is GRANTED.