Mathirampuzha v. Potter, No. 06-4384 (2d Cir. 2008)

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06-4384-cv Mathirampuzha v. Potter 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: March 17, 2008 Decided: November 3, 2008) 5 Docket No. 06-4384-cv 6 ------------------------------------- 7 Joseph MATHIRAMPUZHA, 8 Plaintiff-Appellant, 9 - v - 10 11 John POTTER, Postmaster General, United States of America, 12 Defendants-Appellees, 13 Ron Sacco, 14 Defendant.* 15 ------------------------------------- 16 Before: 17 WINTER, STRAUB, and SACK, Circuit Judges. Appeal from a judgment of the United States District 18 Court for the District of Connecticut (Janet Bond Arterton, 19 Judge). 20 defendants on plaintiff's Title VII claims and dismissed his 21 claims under the Federal Tort Claims Act for lack of subject- 22 matter jurisdiction. 23 resolution of plaintiff's Title VII claims: his hostile work 24 environment and retaliation claims were not exhausted, and on his * The district court granted summary judgment for We agree with the district court's The Clerk of Court is directed to amend the official caption as set forth above. 1 remaining claims he failed to submit evidence on which an 2 inference of discrimination could reasonably be based. 3 agree with the district court that the Federal Employees' 4 Compensation Act vests the Secretary of Labor with exclusive 5 authority over federal employees' claims arising from work- 6 related injuries. 7 dismissal of the plaintiff's emotional-distress claim under the 8 Federal Tort Claims Act for lack of jurisdiction. 9 that it should have stayed proceedings pending a final We also But we disagree with the district court's We conclude 10 determination by the Secretary of Labor regarding Federal 11 Employees' Compensation Act coverage. 12 Affirmed in part, vacated in part, and remanded. 13 14 W. MARTYN PHILPOT, JR., New Haven, CT, for Appellant. 15 16 17 18 19 20 LISA E. PERKINS, Assistant United States Attorney for the District of Connecticut (Kevin J. O'Connor, United States Attorney, Sandra S. Glover, Assistant United States Attorney, of counsel), Hartford, CT, for Appellees. 21 22 SACK, Circuit Judge: Plaintiff Joseph Mathirampuzha appeals from a final 23 judgment of the United States District Court for the District of 24 Connecticut (Janet Bond Arterton, Judge). 25 principally from an alleged physical assault at a postal facility 26 on September 29, 2003, by Ron Sacco, a supervisor, against the 27 plaintiff, a postal employee. 28 Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 29 U.S.C. § 2000e et seq., and the Federal Tort Claims Act ("the This appeal arises The plaintiff asserts claims under 2 1 FTCA"), 28 U.S.C. § 2671 et seq. 2 summary judgment in favor of the defendant on the Title VII 3 claims and dismissed the FTCA claims for lack of subject-matter 4 jurisdiction. 5 2006 WL 2458669, 2006 U.S. Dist. LEXIS 62738 (D. Conn. Aug. 21, 6 2006). 7 The district court granted Mathirampuzha v. U.S. Postal Serv., No. 3:04cv841, With regard to the plaintiff's Title VII claims, the 8 district court properly granted summary judgment. The plaintiff 9 failed to exhaust his hostile work environment and retaliation 10 claims, and the physical assault and denial of transfer requests 11 he alleges were, respectively, not an adverse employment action 12 and not ascribable to discriminatory motive or intent. 13 portion of the judgment of the district court is affirmed. 14 That With regard to the plaintiff's FTCA claims, the Federal 15 Employees' Compensation Act (the "FECA"), 5 U.S.C. § 8101 et 16 seq., vests the Secretary of Labor with exclusive authority over 17 federal employees' claims arising from work-related injuries. 18 Unless it is clear that the FECA does not apply, federal courts 19 may not entertain FTCA claims. 20 of jurisdiction, however, is not always the proper disposition. 21 In this case, because there was a substantial question regarding 22 whether the plaintiff's emotional-distress claim is covered under 23 the FECA and the Secretary of Labor had not yet rendered a 24 decision regarding his FECA coverage, the district court should 25 not have dismissed that FTCA claim for lack of jurisdiction. 26 therefore vacate that portion of the district court's judgment. Dismissal of such claims for lack 3 We 1 On remand, the district court should reinstate the FTCA claim and 2 stay proceedings pending a final determination by the Secretary 3 of Labor regarding FECA coverage. BACKGROUND 4 5 "In setting forth the facts underlying this appeal from 6 the district court's grant of summary judgment to the defendants, 7 we construe the evidence in the light most favorable to the 8 plaintiff, drawing all reasonable inferences and resolving all 9 ambiguities in his favor." 10 Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006). 11 The plaintiff, of Indian national origin, is a lawful 12 permanent resident of the United States. 13 employed by the United States Postal Service as a mail handler at 14 the processing and distribution center in Wallingford, 15 Connecticut. 16 Since 1997, he has been Soon after the plaintiff began working for the Postal 17 Service, he requested a transfer to the processing and 18 distribution center in Hartford, Connecticut, which is closer to 19 where he and his family live. 20 plaintiff made several more requests, all of which were ignored 21 or denied. 22 That request was denied. The On September 29, 2003, the plaintiff was physically 23 assaulted by Ron Sacco, a supervisor at the Wallingford plant. 24 (Sacco was not the plaintiff's direct supervisor when the 25 incident occurred.) 26 him in the shoulder and the chest, spit in his face, and poked Sacco grabbed the plaintiff's arm, punched 4 1 him in the eye. 2 go to [the] Hartford plant." 3 Sacco also shouted, "Joe, I['ll] never let you The plaintiff's direct supervisor, Claudio Scirocco, 4 quickly intervened -- or, as the plaintiff phrased it, "came to 5 save my life." 6 scene and brought the plaintiff to the office of a higher-ranking 7 Postal Service supervisor. 8 plaintiff told her what had happened. 9 continued to advocate on his behalf, however, and Sacco was A union representative promptly arrived on the But the supervisor laughed when the The plaintiff's union 10 ultimately issued a "Letter of Warning" for "Conduct Unbecoming a 11 Postal Supervisor" and was transferred to another work assignment 12 for at least a year. 13 The plaintiff asserts that his confrontation with Sacco 14 caused him physical injury and severe emotional distress. 15 suffered chest pains and contusions to his shoulder blade, 16 required eye surgery, and fell into a depression. 17 He The plaintiff promptly pursued "pre-complaint 18 counseling" pursuant to 29 C.F.R. § 1614.105 for "[a]ggrieved 19 persons who believe they have been discriminated against." 20 then filed an administrative "EEO Complaint of Discrimination in 21 the Postal Service" on November 2, 2003. 22 alleged a single act of discrimination: the incident involving 23 Sacco on September 29, 2003. 24 He The EEO complaint The plaintiff subsequently filed suit in federal court 25 in Connecticut. In addition to the physical assault by Sacco, 26 the plaintiff's amended complaint alleges that Sacco has 5 1 "verbally harassed" him since 1999, has "subjected him to 2 disparate treatment by denying him approved lunch breaks and 3 assistance in performing work duties," and has retaliated against 4 him for complaining about his treatment. 5 failing to stop such conduct, the plaintiff charges, the 6 Postmaster is liable under Title VII for subjecting him to a 7 hostile work environment.1 8 under the FTCA, alleging the same facts and demanding relief as a 9 result of Sacco's assault, a hostile work environment, and the 10 Am. Compl. ¶ 12. By The plaintiff also asserts claims Postal Service's negligent supervision of its employees.2 11 On August 21, 2006, the district court granted the 12 defendants' motion for summary judgment on the plaintiff's Title 13 VII claims and their motion to dismiss his FTCA claims for lack 14 of subject-matter jurisdiction. 15 The plaintiff appeals. 1 The plaintiff also asserted a claim under the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60. The district court dismissed the state-law claim as preempted by Title VII, Mathirampuzha v. Potter, 371 F. Supp. 2d 159, 161-63 (D. Conn. 2005), a decision the plaintiff does not challenge on appeal. 2 The plaintiff's FTCA claims were filed as a separate action and consolidated with his Title VII claims by order of the district court. 6 DISCUSSION 1 2 I. Standards of Review 3 "We review a district court's grant of summary judgment 4 de novo, construing the evidence in the light most favorable to 5 the non-moving party and drawing all reasonable inferences in 6 [that party's] favor." 7 113 (2d Cir. 2005). 8 is no genuine issue as to any material fact, and if the moving 9 party is entitled to a judgment as a matter of law." 10 Allianz Ins. Co. v. Lerner, 416 F.3d 109, "We will affirm the judgment only if there Id. (citing Fed. R. Civ. P. 56(c)). 11 Where, as here, the district court's determination 12 whether it had subject-matter jurisdiction is based on an 13 interpretation of federal law, our review of her determination is 14 de novo. 15 Cir. 2004). See Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d 16 II. Plaintiff's Title VII Claims 17 Title VII prohibits employment-related discrimination 18 on the basis of race, color, religion, sex, or national origin 19 and retaliation against employees who complain about 20 discrimination. 21 protection to employees of the federal government, including 22 postal workers.3 In 1972, Congress extended Title VII's 42 U.S.C. § 2000e-16(a); see also Loeffler v. 3 We note that we have previously assumed without analysis that Congress extended Title VII's prohibition on retaliation to the federal sector. See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003); Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001), cert. denied, 536 U.S. 922 (2002). The Supreme Court (continued...) 7 1 Frank, 486 U.S. 549, 558-59 (1988); Simonton v. Runyon, 232 F.3d 2 33, 35 (2d Cir. 2000). 3 Title VII for being subjected to a hostile work environment on 4 the basis of his race, color, and national origin. 5 complaint may be fairly read also to seek relief under Title VII 6 based upon the encounter with Sacco on September 29, 2003, and 7 Sacco's retaliatory motive for his conduct on that day. 8 district court determined that the plaintiff's hostile work 9 environment and retaliation claims are barred because he failed Here, the plaintiff seeks relief under His amended The 10 to comply with Title VII's administrative exhaustion 11 requirements, and the remainder of his Title VII claim is 12 meritless because he failed to establish an adverse employment 13 action. 14 differs somewhat from that of the district court. 15 A. We agree with that result, although our reasoning Exhaustion 16 "Prior to bringing suit under . . . Title VII . . . , a 17 federal government employee must timely exhaust the 18 administrative remedies at his disposal." 19 F.3d 384, 386 (2d Cir. 2001) (per curiam) (citation and internal 20 quotation marks omitted). 3 Belgrave v. Pena, 254 (...continued) recently clarified that the federal-sector provision of the Age Discrimination in Employment Act, 29 U.S.C. § 633a(a), prohibits retaliation based on the filing of an age discrimination complaint, but the Court did not address the issue of whether Title VII bans retaliation in federal employment. See GomezPerez v. Potter, 128 S. Ct. 1931, 1941 n.4 (2008). Because we ultimately conclude that the plaintiff's retaliation claim fails for lack of exhaustion, we simply highlight this question and leave its resolution for a more appropriate case. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") establish the applicable administrative procedures that a federal employee must exhaust prior to filing suit. The EEOC regulations require that the aggrieved employee, inter alia, (1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within 45 days of the alleged discriminatory act, and, if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint ("EEO complaint") within 15 days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint ("EEO notice"). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision. 23 Id. (citing 42 U.S.C. § 2000e-16(c) and 29 C.F.R. 24 §§ 1614.105(a)(1), 1614.106(a) & (b), and 1614.408(a) & (b)).4 25 "This court has treated the requirement that a federal employee 26 bring a complaint to his or her EEO for resolution, see 29 C.F.R. 27 § 1614.105, as analogous to the requirement that a private sector 28 employee first bring a complaint to the attention of the [EEOC] 29 for resolution." 30 2003) (citing Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d 31 Cir. 2001), cert. denied, 536 U.S. 922 (2002)). 32 general rule is that a Title VII plaintiff may not pursue an 33 unexhausted claim, we will consider all claims to the extent they Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir. 4 Although the The Belgrave court cited 29 C.F.R. § 1614.408, but in 1999 this provision was redesignated as section 1614.407. See Federal Sector Equal Employment Opportunity, 64 Fed. Reg. 37,644, 37,659 (July 12, 1999). 9 1 are "reasonably related" to those that the plaintiff did assert 2 in a timely EEO charge. 3 Fitzgerald, 251 F.3d at 359. After seeking pre-complaint counseling under 29 C.F.R. 4 § 1614.105, the plaintiff timely filed a formal written 5 administrative "EEO Complaint of Discrimination in the Postal 6 Service" on November 2, 2003. 7 requires the employee to specify the "Type of Discrimination You 8 Are Alleging" and provides the following checkbox options: race, 9 color, religion, national origin, sex, age, retaliation, and The administrative complaint form 10 disability. 11 origin. 12 the "Date on which alleged act(s) of Discrimination Took Place," 13 to which the plaintiff answered "9/29/03." 14 the requirement that he "Explain the specific action(s) or 15 situation(s) that resulted in you alleging that you believe you 16 were discriminated against," the plaintiff provided the following 17 narrative: 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 The plaintiff checked race, color, and national The complaint form also requires the employee to specify Then, in response to On Sept 29th my non scheduled day tour beginning from 3.30 to midnight. I was working F S M 100, as told by my M D O, Curtis Parente. At 11.30 pm my supervisor, Cladio [sic] Scirocco told me to get the reject mail 120 from the machine 22. I got an empty postcon from the F S M 1000 and was heading to get the mail. On the aisle I saw Mr. Ron Saco [sic] standing near by the Clock E 12, he yelled at me from there "Joe where you going". I responded that I was going to pick up the reject mail 120. He then shouted "go to 117 otherwise punch out and go home". Soon he rushed to me like a football player, hit my chest and shoulder with his full body power. I fell onto the yellow rails, I tried to hold on to the rails not to fall down. He 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 squeezed me with one hand while holding me tightly with his other arm. He continued this for almost three to five minutes, stating that he will never let me go to Hartford. His spit came on to my face (because he was too close to my face). His hand poked my left eye and tears were rolling down from my eyes, meanwhile my supervisor heard the yelling and came to the site, he then called the M D O, Curtis Parente[.] M D O Curtis Parente came to the spot with Don Kulak. Then the M D O assured me that he will take care of the matter and he asked me to continue to work. Then I filed a grievance with the union office. I had two witnesses 1) Claudio Scerocco [sic] 204b 2) Sherri Sharrington Clerk 19 Joseph Mathirampuzha, EEO Complaint of Discrimination in the 20 Postal Service 2, Nov. 2, 2003. 21 The administrative complaint, in other words, alleged a 22 single act of discrimination: Sacco's aggressive behavior toward 23 the plaintiff on September 29, 2003. 24 assert or imply a retaliatory motive for Sacco's conduct, nor did 25 he indicate that he had been verbally harassed in the past, 26 denied lunch breaks and assistance in performing his work duties, 27 or otherwise subjected to a hostile work environment.5 28 Nowhere did the plaintiff Nevertheless, the plaintiff argues on appeal that his 29 retaliation and hostile work environment claims meet Title VII's 30 exhaustion requirements because they are "reasonably related" to 31 the allegations in his administrative complaint. 5 We disagree. The documentation the plaintiff submitted during the precomplaint counseling process was likewise devoid of any indication that he was alleging retaliation or a hostile work environment. 11 1 The exhaustion requirement is relaxed under the 2 "reasonably related" doctrine if, inter alia, "the conduct 3 complained of would fall within the scope of the EEOC 4 investigation which can reasonably be expected to grow out of the 5 charge of discrimination." 6 internal quotation marks omitted); see also Deravin v. Kerik, 335 7 F.3d 195, 200-01 (2d Cir. 2003); Fitzgerald, 251 F.3d at 359-60. 8 But we do not think that this recognized principle of "loose 9 pleading," Deravin, 335 F.3d at 201 (citation and internal Terry, 336 F.3d at 151 (citation and 10 quotation marks omitted), can be stretched to bridge the gap 11 between the allegations asserted in the plaintiff's EEO complaint 12 and the claims he raises in this civil action. 13 an EEOC investigation following "[a] complaint of retaliation 14 could reasonably be expected to inquire into other instances of 15 alleged retaliation by the same actor." 16 Sundstrand Corp., 420 F.3d 166, 178 (2d Cir. 2005) (citation, 17 internal quotation marks, and brackets omitted). 18 case, the plaintiff's EEO complaint did not mention Sacco's 19 previous behavior or his own previous complaints. 20 unlawful retaliation was neither stated nor implied. 21 think that the plaintiff's allegation of a single incident of 22 aggression by Sacco could reasonably be expected to blossom into 23 an investigation covering allegations of unrelated misconduct by 24 Sacco dating back several years. 12 We have held that Jute v. Hamilton But in this A claim of We do not 1 We reach this conclusion bearing in mind that the 2 "reasonably related" inquiry requires a fact-intensive analysis. 3 "In determining whether claims are reasonably related, the focus 4 should be on the factual allegations made in the [EEO] charge 5 itself, describing the discriminatory conduct about which a 6 plaintiff is grieving." 7 internal quotation marks omitted). 8 charge and not its label that controls." 9 Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 458 (S.D.N.Y. Deravin, 335 F.3d at 201 (citation and "[I]t is the substance of the Id. (quoting Alonzo v. 10 1998)). 11 with the [EEO] gave th[e] agency adequate notice to investigate 12 discrimination on both bases." 13 Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam) (citations and 14 internal quotation marks omitted).6 15 "The central question is whether the complaint filed Williams v. New York City Hous. We frequently invoke the "reasonably related" doctrine 16 when the factual allegations made in the administrative complaint 17 can be fairly read to encompass the claims ultimately pleaded in 18 a civil action or to have placed the employer on notice that such 19 claims might be raised. For example, in Deravin, we concluded 6 We have said that the "reasonably related" doctrine "is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims he is suffering." Deravin, 335 F.3d at 201 (citation, internal quotation marks, and brackets omitted); cf. Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147, 1160 (2008) ("Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies."). 13 1 that the plaintiff's race discrimination claim was reasonably 2 related to his EEOC charge of national-origin discrimination 3 because, "read liberally, allegations by an African-American 4 employee that employees of Irish descent are receiving 5 preferential treatment implicitly suggests some form of potential 6 racial discrimination in addition to an illegitimate preference 7 premised on national origin." 8 Similarly, in Williams, we decided that an EEOC charge alleging 9 retaliation was "reasonably related" to a later-articulated claim 10 of sex discrimination because the detailed narrative of the EEOC 11 charge unmistakably referred to sexual harassment: 12 the factual underpinnings of a gender discrimination claim were 13 presented in the complaint made to the EEOC, it was error to 14 dismiss [plaintiff's] claim for failure to exhaust her 15 administrative remedies." 16 contrast, the plaintiff's EEO filing did not give the Postal 17 Service "adequate notice," id. at 70 (citation and internal 18 quotation marks omitted), nor did it contain the "factual 19 underpinnings," id. at 71, of a hostile work environment or 20 retaliation claim. 21 22 23 24 25 26 27 28 29 Deravin, 335 F.3d at 202. "[B]ecause Williams, 458 F.3d at 71. Here, by In a not unrelated context, the Supreme Court has described hostile work environment claims as follows: Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. The "unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single 14 1 2 3 act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts. 4 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) 5 (citations omitted). 6 contains no reference to repeated conduct or the cumulative 7 effect of individual acts. 8 recounts nothing more than a single act of physical and verbal 9 abuse. The plaintiff's administrative complaint To the contrary, his EEO complaint Although this adequately exhausts a discrimination claim 10 based on this single act of abuse, we conclude that the 11 plaintiff's claim that Sacco subjected him to a hostile work 12 environment by verbally harassing him since 1999 and denying him 13 lunch breaks and assistance with his work was properly dismissed 14 for failure to comply with the exhaustion requirement. 15 As for the plaintiff's retaliation claim, the plaintiff 16 asserts in the present action that Sacco's conduct on September 17 29, 2003, was in retaliation for having previously complained 18 about Sacco's "unprofessional and discriminatory conduct." 19 Compl. ¶ 12. 20 related" exception to the exhaustion doctrine either. 21 plaintiff's EEO complaint contains no factual allegations 22 sufficient to alert the EEO to the possibility that Sacco's 23 assault was the product of a retaliatory motive.7 Am. This claim does not fit within the "reasonably 7 The This is not a case in which the plaintiff alleges retaliation for filing the very EEO charge that served to exhaust the plaintiff's other claims. See Terry, 336 F.3d at 151 (recognizing that the exhaustion requirement is relaxed in such cases). The plaintiff did not file an EEO complaint until after (continued...) 15 1 B. Prima Facie Case 2 At the summary-judgment stage, properly exhausted Title 3 VII claims are ordinarily analyzed under the familiar burden- 4 shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 5 792 (1973), and its progeny. 6 Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep't of Cmty. Affairs 7 v. Burdine, 450 U.S. 248, 252-53 (1981). 8 the McDonnell Douglas analysis, the plaintiff bears the burden of 9 establishing a prima facie case of discrimination by showing See St. Mary's Honor Center v. At the first stage of 10 that: "1) he belonged to a protected class; 2) he was qualified 11 for the position; 3) he suffered an adverse employment action; 12 and 4) the adverse employment action occurred under circumstances 13 giving rise to an inference of discriminatory intent." 14 336 F.3d at 138. 15 facie stage "is not onerous." Terry, The plaintiff's burden of proof at the prima Burdine, 450 U.S. at 253. 16 Here, it is undisputed that the plaintiff belongs to a 17 protected class and was qualified for his position at the postal 18 facility. 19 are therefore satisfied, and we turn to the remaining two. The first two prongs of the McDonnell Douglas inquiry 20 1. Sacco's Aggressive Conduct Toward Plaintiff. 21 We agree with the district court that the plaintiff's 22 "asserted treatment at the hands of Ron Sacco on September 29 -- 23 while unprofessional and boorish -- and the initially dismissive 7 (...continued) his encounter with Sacco on September 29, 2003, so he cannot argue (nor does he) that Sacco's conduct was in retaliation for filing the EEO complaint. 16 1 attitude of other supervisors when Sacco's behavior was brought 2 to their attention, does not amount to an 'adverse employment 3 action' . . . ." 4 U.S. Dist. LEXIS 62738, at *22. 5 Mathirampuzha, 2006 WL 2458669, at *7, 2006 An adverse employment action is "a materially adverse 6 change in the terms and conditions of employment." Sanders v. 7 N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) 8 (emphasis added; citation and internal quotation marks omitted). 9 10 11 12 13 14 15 16 17 18 To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation. 19 Id. (citation, internal quotation marks, and ellipsis omitted). 20 Only in limited circumstances does a single, acute incident of 21 abuse qualify as an adverse employment action. 22 hostile work environment claims, we have stated that a single 23 event, if "extraordinarily severe," could alter the conditions of 24 a working environment. 25 141, 153 (2d Cir. 2000) (citation and internal quotation marks 26 omitted). 27 "'sufficiently alters the conditions of the victim's employment 28 and clearly creates an abusive work environment for purposes of 29 Title VII liability'" for sex-based discrimination. 30 Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (quoting In the context of Howley v. Town of Stratford, 217 F.3d A "single incident of rape," for example, 17 Ferris v. 1 Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995), 2 abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 3 524 U.S. 742 (1998)), cert. denied, 537 U.S. 824 (2002). 4 require that the incident constitute an "intolerable alteration" 5 of the plaintiff's working conditions, Howley, 217 F.3d at 154, 6 so as to substantially interfere with or impair his ability to do 7 his job, see Mormol v. Costco Wholesale Corp., 364 F.3d 54, 59 8 (2d Cir. 2004). 9 But we We conclude, in light of that authority, that Sacco's 10 aggressive conduct toward the plaintiff on September 29, 2003, 11 was not an adverse employment action. 12 place, the plaintiff continued to work at the Wallingford plant 13 in the same position, at the same pay, and with the same 14 responsibilities. 15 brought lasting harm to the plaintiff's ability to do his job. 16 The physical encounter itself, while understandably upsetting, 17 was not so severe as to alter materially the plaintiff's working 18 conditions -- unlike, for example, a rape, see Ferris, 277 F.3d 19 at 136, or an obscene and humiliating verbal tirade that 20 undermines the victim's authority in the workplace, see Howley, 21 217 F.3d at 154. 22 moreover, while not immediate, ultimately ameliorated the 23 plaintiff's working conditions, as Sacco was eventually 24 disciplined and transferred to another work assignment for at 25 least one year. 26 abuse could constitute an adverse employment action, the brief After the incident took Indeed, there is no evidence that the assault The Postal Service's response to the incident, Although a more severe incident of harassment or 18 1 incident in this case, however regrettable, does not meet the 2 "extraordinarily severe" standard. 3 failed to establish a prima facie case of employment 4 discrimination based on that event. The plaintiff has therefore 5 2. The Denial of Plaintiff's Requests for a Transfer. 6 The plaintiff's transfer requests were denied several 7 times, but there is no evidence in the record that anyone who was 8 responsible for rejecting those transfer requests harbored a 9 discriminatory motive toward the plaintiff or acted with a 10 discriminatory intent. 11 satisfy the fourth part of the McDonnell Douglas test for 12 establishing a prima facie case: that the adverse employment 13 action, if any, "occurred under circumstances giving rise to an 14 inference of discriminatory intent." 15 The plaintiff therefore has failed to Terry, 336 F.3d at 138.8 It is true that during the incident of September 29, 16 2003, Sacco threatened the plaintiff with respect to his desire 17 to transfer to Hartford. 18 direct superior, and the plaintiff has pointed to no evidence in 19 the record, nor have we found any, that Sacco had anything to do 20 with whether or not the plaintiff was transferred to Hartford as But Sacco was not the plaintiff's 8 The Postal Service does not argue on appeal that the plaintiff failed to exhaust his claim regarding the denial of his transfer requests or failed to raise such a claim in his amended complaint. We therefore deem those arguments waived and consider on the merits whether the plaintiff has established a prima facie case of discrimination based on the denial of his transfer requests. See Francis v. City of New York, 235 F.3d 763, 766 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 569-70 & n.5 (2d Cir. 2000). 19 1 he wished. 2 discriminatory views toward the plaintiff is therefore irrelevant 3 to the claim regarding denial of transfer. 4 The fact that Sacco might have harbored The district court concluded that the Post Office's 5 rejection of plaintiff's requests for a transfer to the postal 6 facility in Hartford did not amount to an "adverse employment 7 action," Mathirampuzha, 2006 WL 2458669, at *7, 2006 U.S. Dist. 8 LEXIS 62738, at *21-*22, and that the plaintiff therefore failed 9 to meet his burden with respect to the third part of the 10 McDonnell Douglas test. Terry, 336 F.3d at 138. 11 indeed, some support for that conclusion in our case law. 12 generally Beyer v. County of Nassau, 524 F.3d 160, 164 (2d Cir. 13 2008) ("A denial of a transfer may . . . constitute an adverse 14 employment action, but we require a plaintiff to proffer 15 objective indicia of material disadvantage; subjective, personal 16 disappointment is not enough." (citation, internal quotation 17 marks and brackets omitted)); Williams v. R.H. Donnelley Corp., 18 368 F.3d 123, 128 (2d Cir. 2004) (concluding that the denial of 19 an employee's request for transfer is not an adverse employment 20 action unless the denial "created a materially significant 21 disadvantage in her working conditions"). 22 that Sacco had no responsibility for the transfer, and that the 23 evidence does not support an inference that the other defendant, 24 or his agents who were responsible for declining the plaintiff's 25 requests for a transfer, acted in a way that could reasonably 26 give rise to an inference of discriminatory intent, we do not 20 There is, See Because we conclude 1 reach the question of whether the failure to transfer the 2 plaintiff to Hartford was or was not an adverse employment 3 action. 4 5 III. A. Plaintiff's Federal Tort Claims Framework for Analysis 6 The FTCA waives the sovereign immunity of the United 7 States for certain torts committed by federal employees, 8 including Postal Service employees, within the scope of their 9 employment. Dolan v. U.S. Postal Serv., 546 U.S. 481, 484-85 10 (2006); see 28 U.S.C. § 2674; 39 U.S.C. § 409(c). When the tort 11 victim is also a federal employee, however, work-related injuries 12 are compensable only under the FECA.9 13 Votteler v. United States, 904 F.2d 128, 130 (2d Cir.) ("FECA is See 5 U.S.C. § 8116(c);10 9 Postal employees are federal employees for FECA purposes. 39 U.S.C. § 1005(c). 10 Section 8116(c) provides, in pertinent part: The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, spouse, dependents, next of kin, and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute. 5 U.S.C. § 8116(c) (emphasis added). 21 1 the exclusive remedy for work-related injuries sustained by 2 federal employees." (citation omitted)), cert. denied, 498 U.S. 3 1000 (1990). 4 5 6 7 8 9 10 11 12 13 14 15 16 As the Supreme Court has explained: FECA's exclusive liability provision . . . was designed to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government's sovereign immunity. In enacting this provision, Congress adopted the principal compromise - the "quid pro quo" - commonly found in workers' compensation legislation: employees are guaranteed the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government. 17 Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 18 (1983). 19 Congress has vested the Secretary of Labor or her 20 delegate with exclusive authority to "administer[] and decide all 21 questions arising under" the FECA, 5 U.S.C. § 8145, and federal 22 courts are barred from exercising judicial review over such 23 decisions, id. § 8128(b).11 11 Because the FECA is an "exclusive" Section 8128(b) provides: The action of the Secretary or his designee in allowing or denying a payment under this subchapter is -(1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise. 5 U.S.C. § 8128(b). But cf. United States v. Sforza, 326 F.3d (continued...) 22 1 remedy, id. § 8116(c), it deprives federal courts of subject- 2 matter jurisdiction to adjudicate claims brought under the FTCA 3 for workplace injuries that are covered by the FECA. 4 v. United States, 356 F.2d 837, 840 (2d Cir. 1966), cert. denied, 5 385 U.S. 1012 (1967). 6 See Granade The plaintiff acknowledges that if a claim is covered 7 by the FECA, he cannot recover under the FTCA. But he argues 8 that he has asserted a claim for damages for emotional distress 9 as well as for physical injuries resulting from his confrontation 10 with Sacco and that the FECA does not "cover" damages for 11 emotional distress. 12 is not precluded. 13 first impression for us: 14 the scope of FECA coverage: the Secretary of Labor, or the 15 federal district court asked to adjudicate the claim under the 16 FTCA? 17 He contends, therefore, that his FTCA claim The plaintiff's argument raises a question of Who decides whether a claim is within We agree with the majority of circuits to have 18 addressed this question that where there is a substantial 19 question of FECA coverage - indeed, unless it is certain that 20 the FECA does not cover the type of claim at issue the 21 district court may not entertain the FTCA claim. 22 United States, 471 F.3d 204, 206 (1st Cir. 2006), cert. denied, 11 See Gill v. (...continued) 107, 111-15 (2d Cir. 2003) (holding that section 8128(b) does not deprive courts of jurisdiction over government's False Claims Act suit seeking recoupment of fraudulently obtained disability benefits). 23 1 128 S. Ct. 45 (2007); Tippetts v. United States, 308 F.3d 1091, 2 1094 (10th Cir. 2002); Noble v. United States, 216 F.3d 1229, 3 1235 (11th Cir. 2000); Bennett v. Barnett, 210 F.3d 272, 277 (5th 4 Cir.), cert. denied, 531 U.S. 875 (2000); McDaniel v. United 5 States, 970 F.2d 194, 198 (6th Cir. 1992) (per curiam); DiPippa 6 v. United States, 687 F.2d 14, 16 (3d Cir. 1982); Wallace v. 7 United States, 669 F.2d 947, 951 (4th Cir. 1982); Daniels-Lumley 8 v. United States, 306 F.2d 769, 771 (D.C. Cir. 1962). 9 is a substantial question of FECA coverage, only the Secretary of If there 10 Labor or her delegate may decide whether the FECA applies. 11 the Secretary determines that the plaintiff's claim is 12 fundamentally outside the scope of the FECA, then the claim may 13 proceed under the FTCA in district court.12 14 courts have no jurisdiction over FTCA claims where the Secretary 15 determines that FECA applies." 16 U.S. 81, 90 (1991). 17 18 If Conversely, "the Sw. Marine, Inc. v. Gizoni, 502 Only the Ninth Circuit has taken the position the plaintiff would have us adopt here -- that a federal court 12 The Secretary must determine that the claim categorically falls outside the scope of the FECA's coverage -- in other words, that the claim is not the type of claim covered by the FECA. The plaintiff may not proceed under the FTCA if the claim fails for lack of proof. See Bennett, 210 F.3d at 277. "So long as the injury is of the type intended to be covered by FECA, the fact that no actual compensation was awarded is irrelevant." McDaniel, 970 F.2d at 197. To the extent the plaintiff argues that he should be able to proceed under the FTCA because the FECA, though it may cover his claim, does not compensate for pain and suffering, this argument is without merit. See Noble, 216 F.3d at 1234; Votteler, 904 F.2d at 130; Balancio v. United States, 267 F.2d 135, 137-38 (2d Cir. 1959). 24 1 decides the threshold question whether the type of injury alleged 2 falls within the scope of FECA coverage, whereas the Secretary of 3 Labor decides the unreviewable question whether the claimant is 4 to receive compensation. 5 1065, 1068 (9th Cir.), cert. denied, 540 U.S. 877 (2003); 6 Figueroa v. United States, 7 F.3d 1405, 1407-08 (9th Cir. 1993), 7 cert. denied, 511 U.S. 1030 (1994); Sheehan v. United States, 896 8 F.2d 1168, 1173-74 (9th Cir.), amended, 917 F.2d 424 (9th Cir. 9 1990). See Moe v. United States, 326 F.3d That court has reasoned that the FECA's "[s]cope . . . is 10 a question that must be answered by the federal courts, because 11 it is one of jurisdiction." Moe, 326 F.3d 1068. 12 We see little basis for that view. Congress may limit 13 its waiver of sovereign immunity by vesting exclusive 14 jurisdiction over certain claims against the government in 15 administrative agencies. 16 Pipe Line Co., 458 U.S. 50, 67-70 & n.18 (1982) (plurality) 17 (discussing the "public rights" doctrine). 18 agencies' reasonable interpretations of ambiguous language in the 19 statutes they administer, including the scope of those statutes 20 and the types of claims they cover. 21 Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) ("We 22 have long recognized that considerable weight should be accorded 23 to an executive department's construction of a statutory scheme 24 it is entrusted to administer, and the principle of deference to 25 administrative interpretations." (footnote omitted)); see also 26 Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. See N. Pipeline Constr. Co. v. Marathon 25 And we defer to See Chevron, U.S.A., Inc. v. 1 354, 381 (1988) (Scalia, J., concurring) ("[I]t is settled law 2 that the rule of deference applies even to an agency's 3 interpretation of its own statutory authority or jurisdiction." 4 (collecting cases)). 5 Labor may determine what types of claims fall within the scope of 6 FECA coverage.13 7 exclusive, our subject-matter jurisdiction ends where FECA 8 coverage begins. 9 We therefore conclude that the Secretary of And because liability under the FECA is That said, we doubt whether, as some Courts of Appeals 13 Although we recognize that the Secretary's decision regarding FECA coverage -- unlike most administrative decisions to which courts owe Chevron deference -- seems to be unreviewable, see 5 U.S.C. § 8128(b), we do not think that difference is dispositive. First, "Congress is not barred from acting pursuant to its powers under Article I to vest decisionmaking authority in . . . [administrative agencies] with limited or no review by Article III courts." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 583 (1985); see Blanc v. United States, 244 F.2d 708, 710 (2d Cir.) (per curiam) (applying that principle to FECA claims), cert. denied, 355 U.S. 874 (1957). Second, in an action that begins as a FTCA claim in federal court, the Secretary's discretion in construing the scope of the FECA is cabined before, rather than after, the final agency decision: Courts need not refer FTCA claims to the Secretary of Labor unless there is a "substantial question" of FECA coverage. We note, too, that several appellate courts have held that "an implicit and narrow exception to the bar on judicial review exists for claims that the agency exceeded the scope of its delegated authority or violated a clear statutory mandate." Hanauer v. Reich, 82 F.3d 1304, 1307 (4th Cir. 1996); see also Brumley v. U.S. Dep't of Labor, 28 F.3d 746, 747 (8th Cir. 1994) (per curiam), cert. denied, 513 U.S. 1082 (1995); Woodruff v. U.S. Dep't of Labor, 954 F.2d 634, 639 (11th Cir. 1992) (per curiam); Staacke v. U.S. Sec'y of Labor, 841 F.2d 278, 281 (9th Cir. 1988). We have previously declined to decide whether we would recognize that exception, Senerchia v. United States, 235 F.3d 129, 131-32 (2d Cir. 2000), and we have no need to address that issue today. 26 1 have said, the mere existence of a substantial question of FECA 2 coverage deprives us of subject-matter jurisdiction over FTCA 3 claims. 4 717 F.2d 254, 257 (6th Cir. 1983). 5 5 U.S.C. § 8116(c), but the FTCA is an unambiguous waiver of 6 sovereign immunity where the FECA does not apply.14 7 although district courts must permit the Secretary of Labor to 8 determine whether the FECA applies whenever an FTCA claim raises 9 a substantial question of FECA coverage, the courts do not 10 immediately lose subject-matter jurisdiction over the case. 11 if the Secretary determines that the type of claim involved does 12 not implicate the FECA, then the FTCA claim may proceed. 13 Noble, 216 F.3d at 1235; White v. United States, 143 F.3d 232, 14 239 (5th Cir. 1998); McDaniel, 970 F.2d at 198; DiPippa, 687 F.2d 15 at 20. 16 the Secretary determines that FECA applies." 17 U.S. at 90 (emphasis added). 18 district court deems it highly unlikely that the claim falls 19 outside the scope of the FECA, subject-matter jurisdiction over 20 the case remains with the court until the Secretary has made that 21 determination. 22 23 See Gill, 471 F.3d at 207-08; Wright v. United States, FECA liability is exclusive, Therefore, For See "[T]he courts have no jurisdiction over FTCA claims where Sw. Marine, 502 Even in situations where the Our conclusion in this regard is informed by the Supreme Court's discussion in Southwest Marine of the 14 Assuming, of course, the FTCA's other enumerated exceptions, see 28 U.S.C. § 2680, also do not apply. 27 1 relationship between FECA and the FTCA in the context of the so- 2 called "primary jurisdiction" doctrine. Id. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The doctrine of primary jurisdiction, like the rule requiring exhaustion of administrative remedies, is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties. "Exhaustion" applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. "Primary jurisdiction," on the other hand, applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views. 24 United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64 (1956); see 25 also Reiter v. Cooper, 507 U.S. 258, 268 (1993) ("Referral of the 26 issue to the administrative agency does not deprive the court of 27 jurisdiction . . . ."). 28 jurisdiction establishes a helpful framework for the treatment of 29 FTCA claims that raise a substantial question of FECA coverage. 30 B. 31 We think the doctrine of primary Plaintiff's FTCA Claims With these principles in mind, we turn to the district 32 court's treatment of the plaintiff's claims under the FTCA. 33 plaintiff argues that his FTCA claim for emotional distress 34 should go forward because the FECA does not cover such claims. 35 But unless it is clear that the FECA does not cover the type of 36 claim at issue, there is a substantial question of FECA coverage. 28 The 1 See, e.g., DiPippa, 687 F.2d at 16. It is not difficult to find 2 examples of FECA coverage for claims of emotional distress, 3 psychological injuries, and the like. 4 Goss, 446 F.3d 159, 161 (D.C. Cir. 2006); Tippetts, 308 F.3d at 5 1094-95; Swafford v. United States, 998 F.2d 837, 838 (10th Cir. 6 1993); McDaniel, 970 F.2d at 197; Doe v. United States, 914 F. 7 Supp. 945, 950 (W.D.N.Y. 1996). 8 determined that the plaintiff's emotional-distress claim raised a 9 substantial question of FECA coverage, Mathirampuzha, 2006 WL See, e.g., Spinelli v. The district court therefore 10 2458669, at *8, 2006 U.S. Dist. LEXIS 62738, at *26, and we 11 agree. 12 We conclude that the district court erred, however, in 13 dismissing the plaintiff's FTCA emotional-distress claim for lack 14 of jurisdiction. 15 because the event that would have divested the court of 16 jurisdiction -- a determination by the Secretary of Labor that 17 the plaintiff's emotional-distress claim was covered by the FECA 18 -- did not occur. 19 proceedings, hold the claim in abeyance, or otherwise maintain 20 the case on the court's inactive docket so that the plaintiff 21 could file a FECA claim and await a determination by the 22 Secretary regarding FECA coverage. 23 1095; Noble, 216 F.3d at 1235; White, 143 F.3d at 239; McDaniel, 24 970 F.2d at 197-98; DiPippa, 687 F.2d at 20; Doe, 914 F. Supp. at 25 950. The district court did not lose jurisdiction, The proper course was therefore to stay the 29 See Tippetts, 308 F.3d at 1 In some cases involving the primary jurisdiction 2 doctrine, the district court has discretion to dismiss the case 3 without prejudice while the relevant issue is referred to and 4 considered by the administrative agency. 5 268-69. 6 the parties would not be unfairly disadvantaged." 7 We think there is a significant danger of unfair disadvantage 8 here inasmuch as the plaintiff's claim is subject to a statute of 9 limitations. See Reiter, 507 U.S. at But dismissal without prejudice is permitted only "if Id. at 268. See Carnation Co. v. Pac. Westbound Conference, 383 10 U.S. 213, 223 (1966) (contrasting suits for injunctive relief, 11 which "could easily be reinstituted" at any time, with "damage 12 action[s] for past conduct," which "are likely to be [time- 13 ]barred by the time the [agency] acts"). 14 Secretary of Labor determines that a claim is not covered under 15 the FECA, it may be too late to reinstitute an action for damages 16 under the FTCA.15 17 of limitations problems, the district court should stay 18 proceedings in the action until the Secretary resolves the 19 question of FECA coverage." By the time the See White, 143 F.3d at 239. "To avoid statute DiPippa, 687 F.2d at 20. 20 At oral argument, we were told that the plaintiff had 21 filed a FECA claim during the pendency of this appeal, that the 22 claim was denied as untimely, and that the denial of the claim is 23 on appeal within the administrative agency. 24 learned, based on the parties' supplements to the record, that 15 We have also The statute of limitations under the FTCA is two years. 28 U.S.C. § 2401(b). 30 1 the administrative decision denying the plaintiff's FECA claim 2 did not comment on whether the claim was otherwise covered under 3 the statute. 4 plaintiff's FECA claim on grounds of untimeliness without comment 5 regarding whether the claim is otherwise covered by the FECA, 6 then dismissal without prejudice would be appropriate and would 7 result in no "unfair disadvantage" to the plaintiff. 8 of demonstrating subject-matter jurisdiction lies with the party 9 asserting it, see Hamm v. United States, 483 F.3d 135, 137 (2d Should the Secretary's final decision deny the The burden 10 Cir. 2007), as does the burden of filing a timely FECA claim, see 11 ILGWU Nat'l Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 12 879, 887 (2d Cir. 1988) ("The failure to seek . . . relief on a 13 timely basis may, in some instances, lead to a harsh result, but 14 the harshness of the default is largely a self-inflicted wound." 15 (citation and internal quotation marks omitted)). 16 Secretary decides only that the plaintiff's FECA claim is 17 untimely, then the plaintiff will have failed to establish that 18 his claim is not covered by the FECA. 19 If the If, however, the Secretary's final decision dismisses 20 the plaintiff's FECA claim on the ground that, even if it had 21 been timely filed and its allegations fully proven, the plaintiff 22 could not recover under the FECA because his claim is of a type 23 not covered by that statute, then the plaintiff should be able to 24 pursue his FTCA claim in the district court. 25 course, mean to suggest that there is merit to the plaintiff's 26 FTCA claim, nor that we anticipate that the Secretary will decide 31 We do not, of 1 the plaintiff's FECA claim on any basis other than its 2 timeliness. 3 the FECA, which may well preclude relief under the FTCA, should 4 be decided by the Secretary first. 5 We conclude only that the question of coverage under The portion of the district court's judgment dismissing 6 the plaintiff's FTCA emotional-distress claim is therefore 7 vacated. 8 claim and stay proceedings pending a final determination by the 9 Secretary of Labor resolving the plaintiff's FECA claim. 10 11 On remand, the district court should reinstate the FTCA CONCLUSION For the foregoing reasons, the judgment of the district 12 court is affirmed in part and vacated in part. 13 remanded for further proceedings consistent with this opinion. 32 This cause is

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