On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 82-1830.
Before: ALDISERT, Chief Judge, GARTH and SLOVITER, Circuit Judges.
The narrow issue in this interlocutory appeal which is before us pursuant to 28 U.S.C. § 1292(b) is whether the plaintiff is precluded from proceeding with his Title VII suit against the Postmaster General and the United States because plaintiff is recovering compensation under the Federal Employees' Compensation Act (FECA), 5 U.S.C. §§ 8101-8193.
The defendants (collectively referred to as Postmaster General) appeal from the district court's order denying their motion for summary judgment. We affirm the order of the district court and hold that FECA recovery for injuries does not preclude plaintiff's claim for at least some Title VII remedies.
Plaintiff Cletis Miller, a white male, was employed by the United States Postal Service from 1957 through 1972. In 1972, Miller became a member of the Postal Service Security Force and was transferred to the Postal Service Building, Newark, New Jersey, as a Postal Security Officer. On August 7, 1974, Miller voluntarily testified at a Civil Service Commission hearing on behalf of Albin Spence, a black male co-worker of Miller. As a result of the hearing, Spence was reinstated in the job from which the Postal service had previously removed him.
Miller alleges that because of his testimony on behalf of Spence, he became the subject of harassment, abuse and physical attack by his co-workers and supervisors. For example, Miller alleges that: (1) in the summer of 1978, in the presence of a supervisor, Miller was struck in the leg and hip by a chair kicked by a co-worker; (2) in November 1978, Miller was injured by sitting in a broken chair substituted for his own chair by co-workers; (3) on July 20, 1979, Miller was injured when a supervisor dropped a chair on him; (4) on February 8, 1980, Miller suffered severe and permanent physical injuries when he was pushed against steel lockers by a co-worker. Miller contends that these abuses were permitted, condoned and encouraged by the supervisors and administrators of the United States Postal Service.
Miller's final pay period ended on February 24, 1981. He alleges that the physical injuries referred to above rendered him permanently disabled. Miller has received FECA benefits since early 1983, and continues to receive monthly FECA benefit checks based on the conclusion of the Department of Labor that Miller's disability was a result of on-the-job injuries.
On June 9, 1982, Miller commenced suit in the United States District Court for the District of New Jersey pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. Miller alleges that his injuries resulted from a conspiracy among his co-workers, condoned by Postal Service supervisors, to retaliate against him because of his testimony on behalf of Spence. Miller seeks the following relief: (1) damages for temporary wage losses from November 30, 1978 to April 26, 1979 and form February 8, 1980 to May 13, 1980; (2) damages for permanent wage loss from February 24, 1981 through Miller's life expectancy of 21.58 years; (3) medical costs; (4) property damage to his automobile; (5) attorneys' fees incurred in seeking FECA benefits and in this lawsuit.
The Postmaster General filed a motion for summary judgment, claiming (1) that the district court lacked subject matter jurisdiction over the Title VII suit because Miller's exclusive remedy is under FECA and (2) that certain items of damage sought by Miller were compensatory or consequential and therefore are unavailable under Title VII. The district court considered only the exclusivity issue. The court held that the exclusivity provisions of FECA "do not preclude a federal employee from pursuing claims for work-related injuries under Title VII." App. at 49. The court thus denied the Postmaster General's motion for summary judgment but certified that its order was appropriate for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We granted permission to appeal.
The issue is one of law only, as to which we have plenary review. For purposes of this appeal, we will accept plaintiff's version of the facts and ...