Opinion
Civil Action No. 05-40194-FDS.
December 15, 2006
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS TORT, CONTRACT, AND STATE LAW DISCRIMINATION CLAIMS
This is an action alleging sexual harassment, sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and under various state law theories. Plaintiff Helen Setterlund, a female postal employee, alleges that she was subjected to a hostile work environment, unlawful retaliation, and disparate treatment on the basis of her gender, and that defendant John Potter, Postmaster General of the United States Postal Service, failed to remedy the situation.
Pending before the Court is defendant's motion to dismiss the tort, contract, and state law discrimination claims pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Defendant contends that these claims should be dismissed for lack of subject matter jurisdiction and are preempted by Title VII. For the reasons stated below, the motion will be granted.
I. Factual Background
In early 2003, plaintiff Helen Setterlund was employed by the United States Postal Service as a custodian at a post office in Worcester, Massachusetts. On April 25, 2003, she reported to Acting Manager Stephen Rosetti that she had seen a co-worker, Ben Wrubel, recklessly towing a dumpster containing hazardous materials. According to plaintiff, this incident was never addressed.
On April 28, plaintiff discovered two plastic bags at the bottom of her locker. One bag contained feces and the other bag contained a plastic knife. She reported this incident to Ken Fairbrother, Manager of Maintenance, and John Meuse, Acting Postmaster.
On multiple occasions from May 5 to May 21, plaintiff found toilets filled with toilet paper and with feces on top. She showed this to Fairbrother and submitted a written report to Rosetti.
She submitted another report to Rosetti on May 19, after a male co-worker, Jack Platt, stood at the time clock, glaring at her with his arms folded. Plaintiff contends that Platt did this to intimidate her.
Plaintiff contends that when she was walking to the ladies room on May 21, 2003, Wrubel walked past her and twice mumbled something under his breath that sounded like the word "c ___ t." She reported the incident to Rosetti.
According to plaintiff, she has experienced stress and anxiety from these incidents, which has caused her to seek medical treatment. Her blood pressure was extremely elevated and she was prescribed medication. Following the incident on May 21, she was given an "out of work order."
II. Procedural History
Setterlund filed a formal complaint with the Equal Employment Opportunity Commission on July 3, 2003, claiming hostile work environment, unlawful retaliation, and disparate treatment. The matter was assigned to Administrative Judge Kathleen M. Clarke. On August 4, 2005, defendant filed a motion for findings and conclusions without a hearing, which Judge Clarke allowed on September 9. The complaint is unclear as to the ultimate resolution of Setterlund's EEOC case.
Plaintiff also states in her complaint that on April 25, 2003, she filed a charge of employment discrimination with the Postal Service. However, she provides no information as to what conduct formed the basis of the claim or how the charge was ultimately resolved. Moreover, it appears that the filing of this charge predates the conduct underlying her current claims.
Plaintiff filed the present action in federal court on October 27, 2005. Her seven-count complaint alleges claims of (1) negligence; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) intentional and negligent infliction of emotional distress and sexual harassment; (5) assault and battery; (6) violation of the Massachusetts Civil Rights Act and unlawful retaliation in violation of Title VII, 42 U.S.C. § 2000e; and (7) violation of Mass. Gen. Laws ch. 151B and sex discrimination in violation of Title VII.
On June 13, 2006, defendant filed a motion to dismiss tort, contract, and state law discrimination claims pursuant to Fed.R.Civ.P. 12(b)(1) and (6).
III. Analysis
Plaintiff bears the burden of proving subject matter jurisdiction. Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996). "[J]urisdiction must be apparent from the face of the plaintiff's pleading." Viqueira v. First Bank, 140 F.3d 12, 18 (1st Cir. 1998). "In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff." Aversa, 99 F.3d at 1209-10.
A motion to dismiss under Rule 12(b)(6) "serves only one purpose, and that is to test the legal sufficiency of the allegations, not of the evidence likely to be introduced at trial or on a motion for summary judgment." In re Digital Equip. Corp. Sec. Litig., 601 F. Supp. 311, 313 n. 2 (D. Mass. 1984). The court must "assume the truth of all well-pleaded facts and indulge all reasonable inferences that fit the plaintiff's stated theory of liability." Redondo-Borges v. United States Dep't of Hous. and Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005) (citation omitted). A claim should be dismissed pursuant to Rule 12(b)(6) "only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Defendant contends that the Court lacks subject matter jurisdiction over plaintiff's tort claims. He further contends that to the extent plaintiff's remaining claims arise under state law, they are preempted by Title VII.
A. Whether This Court Has Subject Matter Jurisdiction over Plaintiff's Tort Claims
The United States is immune from suit, except to the extent that it has expressly consented to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). Congress has provided a limited waiver of sovereign immunity through the Federal Tort Claims Act ("FTCA"), which subjects the United States to suit in tort under certain conditions. 28 U.S.C. §§ 1346, 2671-2680; Molzof v. United States, 502 U.S. 301, 305 (1992). As with all waivers of sovereign immunity, the tort waiver must be "construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries as its language plainly requires." United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994).
Plaintiff alleges the following tort claims against the government: negligence (Count I); interference with contract rights (Counts II and III); intentional and negligent infliction of emotional distress (Count IV); and assault and battery (Count V). Defendant contends the Court lacks subject matter jurisdiction over these claims under the FTCA, on the grounds that (1) the FTCA does not permit claims for assault and battery and interference with contract rights; and (2) plaintiff has failed to exhaust her administrative remedies, as required by 28 U.S.C. § 2675(a). 1. Claims for Assault and Battery and Interference with Contract Rights Are Expressly Prohibited by the FTCA
Counts II and III of plaintiff's complaint allege claims for breach of contract and breach of the implied covenant of good faith and fair dealing, respectively. These counts therefore appear to allege contract, rather than tort, claims. Defendant nonetheless argues for dismissal of these claims for lack of subject matter jurisdiction pursuant to the FTCA, to the extent that they allege claims of interference with contract rights. For purposes of this motion to dismiss, the Court will assume that Counts II and III raise both tort and contract claims.
Defendant also contends that because plaintiff has brought her tort claims against the Postmaster General, rather than against the United States, they should be dismissed for failure to name a proper defendant. While defendant may be correct, the Court need not reach this issue. For the reasons stated below, the Court finds dismissal of the tort claims proper on the other grounds raised by defendant.
Defendant contends that the Court lacks jurisdiction to hear plaintiff's assault and battery and interference with contract rights claims because they are expressly barred by the FTCA. The Court agrees.
As noted above, the United States has consented to be sued in tort under certain conditions. Molzof, 502 U.S. at 305. However, this waiver of sovereign immunity is limited by a number of exceptions. See 28 U.S.C. § 2680(a)-(n). Section 2680 states in relevant part:
The provisions of this chapter and section 1346(b) of this title shall not apply [with limited exceptions not relevant here] to —
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights . . .28 U.S.C. § 2680(h). Where a claim falls "within the compass of these exceptions," it is "outside the ambit of federal subject matter jurisdiction." Muniz-Rivera v. United States, 326 F.3d 8, 12 (1st Cir. 2003). Because plaintiff's claims for assault and battery and interference with contract rights are expressly prohibited under § 2680(h), they fall outside of the government's waiver of sovereign immunity and must be dismissed.
2. Failure to Exhaust Administrative Remedies
Defendant further contends that plaintiff has failed to exhaust her administrative remedies as to the remaining tort claims (negligence and intentional and negligent infliction of emotional distress), as required under 28 U.S.C. § 2675(a). Because the complaint fails to allege that she filed an administrative claim for money damages in a sum certain prior to filing this lawsuit, the Court agrees that the remaining tort claims should be dismissed.
The FTCA imposes an administrative procedure that a claimant must exhaust before filing a tort claim against the United States. 28 U.S.C. § 2675. Specifically, the FTCA provides that "[a]n action shall not be instituted upon a claim against the United States . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied." 28 U.S.C. § 2675(a); see Santiago-Ramirez v. Secretary of the Dep't of Def., 984 F.2d 16, 18 (1st Cir. 1993). Tort claims are "forever barred" unless they are submitted to the proper federal agency within two years after the claim accrues. 28 U.S.C. § 2401(b). The purpose of the exhaustion requirement is "to apprise the government of its possible liability and to provide the government with notice sufficient to allow it to investigate the alleged negligent episode to determine if settlement would be in the best interests of all." Coska v. United States, 114 F.3d 319, 322 (1st Cir. 1997) (internal quotations and citations omitted); see also Corte-Real v. United States, 949 F.2d 484, 486 (1st Cir. 1991). An administrative claim is properly presented when the claimant provides the appropriate federal agency with a claim form or other written notification and a claim for money damages in a sum certain. 28 C.F.R. § 14.2(a); Coska, 114 F.3d at 322; Santiago-Ramirez, 984 F.2d at 19.
Defendant contends that plaintiff's tort claims should be dismissed for failure to exhaust because (1) she failed to file administrative tort claims with the Postal Service and (2) the claims are time-barred, because she was aware of her tort claims when she filed her EEOC complaint in July 2003 (which was more than two years ago). Plaintiff responds that her EEOC complaint — which alleged hostile work environment, unlawful retaliation, and disparate treatment — satisfied the FTCA's exhaustion requirement, because it put the government on notice of her tort claims.
The Court need not reach the questions of whether the EEOC can be deemed "the appropriate Federal agency" for a tort claim against the Postal Service, or whether the particular EEOC complaint in this case was sufficient to alert the government of its potential tort liability. Plaintiff has failed to allege in her complaint, or even to argue, that her EEOC claim was for a sum certain. The First Circuit has made clear that "[a] timely filed sum certain claim is a jurisdictional prerequisite for a tort action against the federal government." Coska, 114 F.3d at 322 (citing Kokaras v. United States, 980 F.2d 20, 22 (1st Cir. 1992)). In her complaint, plaintiff merely states that "[o]n or about July 3, 2003 the Plaintiff filed a formal complaint with the Equal Employment Opportunity Commission, claiming Hostile Work Environment, Retaliation and Disparate Treatment." Compl. ¶ 5(b). It is thus unclear from the face of the pleadings whether plaintiff filed her EEOC claim for a sum certain, or whether she even sought money damages at all. Accordingly, she has failed to carry her burden of establishing subject matter jurisdiction over her negligence and intentional and negligent infliction of emotional distress claims, and they will be dismissed.
B. Whether Plaintiff's Remaining State Law Claims Are Preempted by Title VII
Finally, defendant contends that plaintiff's state law contract, civil rights, and discrimination claims are preempted by Title VII. Again, the Court agrees.
The United States Supreme Court has indicated that Title VII provides the exclusive judicial remedy for discrimination claims in federal employment. See Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976). Similarly, the First Circuit has acknowledged that "where the gravamen of the complaint is Title VII discrimination, the only remedy available is under Title VII." Rivera-Rosario v. United States Dep't of Agric., 151 F.3d 34, 38 (1st Cir. 1998); see also Layme v. Matias, 177 F. Supp. 2d 111, 114 (D. Puerto Rico 2001).
Plaintiff has raised four state law claims that do not allege common-law torts: (1) breach of contract for failure "to remedy the hostile work environment," Compl. ¶ 21; (2) breach of the implied covenant of good faith and fair dealing "by intentionally failing to protect the Plaintiff against harassment and hostile environment in the place of employment," Compl. ¶ 24; (3) violation of the Massachusetts Civil Rights Act; and (4) violation of Mass. Gen. Laws ch. 151B. The "gravamen" of plaintiff's complaint, and those four claims, is plainly Title VII sex discrimination, and all of her claims arise from the same underlying conduct. Title VII is plaintiff's sole remedy and her remaining state law claims will accordingly be dismissed. Brown, 425 U.S. at 835.
IV. Conclusion
For the foregoing reasons, defendant's motion to dismiss tort, contract, and state law discrimination claims is GRANTED. Counts I, II, III, and V of the complaint are dismissed in their entirety. Counts IV, VI, and VII are dismissed to the extent that they seek recovery under state law.