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McCluskey v. United States

October 12, 2010


The opinion of the court was delivered by: Judge Nora Barry Fischer


I. Introduction

Currently pending before the Court is a Motion to Dismiss Plaintiff Nancy L. McCluskey‟s ("Plaintiff") Complaint pursuant to Fed. R. Civ. P. 12(b)(1) filed by Defendant, the United States of America ("United States"). (Docket No. 5). The United States asserts that this Court lacks subject matter jurisdiction over Plaintiff‟s libel and intentional infliction of emotional distress claims under the Federal Employees Compensation Act ("FECA"), the doctrine of derivative jurisdiction, and the Federal Torts Claims Act ("FTCA"). For the reasons set forth below, Defendant‟s motion is GRANTED.

II. Factual Background

A. Plaintiff's Allegations

Plaintiff, Nancy L. McCluskey ("Plaintiff"), is employed by the Defense Contract Management Agency ("DCMA") as a contract administrator. (Docket No. 1-2 at ¶3). The DCMA is an agency of the United States of America. Joseph Scott ("Scott") is also employed by the DCMA and works as a contract operations group leader. (Docket No. 1-2 at ¶4). At all times material to the allegations underlying Plaintiff‟s Complaint, Scott was acting within the course and scope of his employment at DCMA. (Docket No. 1 at ¶ 6). Plaintiff has been diagnosed with bipolar disorder, a diagnosis known to Scott. (Docket No. 1-2 at ¶¶ 13, 14).

Plaintiff avers that Scott intentionally caused her emotional distress. On November 25, 2008, Scott allegedly entered Plaintiff's office, stared at her angrily and stated, "You have hate for me because it's racial." (Docket No. 1-2 at ¶ 15). This incident caused Plaintiff sufficient stress that she had to leave work. (Docket No. 1-2 at ¶ 16). Plaintiff asserts that Scott continued to cause her emotional harm after this incident. On August 12, 2009 and November 6, 2009, Scott willfully and intentionally intimidated Plaintiff when he allegedly walked past her, stopped, and stared at her until she turned away. (Docket No.1-2 at ¶17). Plaintiff asserts that on both of these dates, she also informed her superiors about Scott‟s intimidating actions, but no action was ultimately taken by the DCMA management. (Docket No. 10-1 at ¶ ¶ 8-10). Plaintiff states that she had to seek psychiatric treatment and take unpaid leave at the direction of her doctor because of Scott‟s actions. (Docket No. 1-2 at ¶¶18-19).

Plaintiff also alleges that she was libeled by Scott. On March 17, 2010, Plaintiff claims that Scott sent an email from his DCMA email account to Plaintiff and at least four other DCMA employees claiming that Plaintiff was unwilling to work with him because of his race. (Docket No. 1-2 at ¶ 6). Upon receiving the email, Plaintiff alleges that she immediately reported Scott‟s conduct to her superiors, but that no action was taken against him. (Docket No. 10-l at ¶ 13). Plaintiff maintains that she was humiliated and suffered emotional harm as a result of this email circulation. (Docket No. 1-2 at ¶ 11). In her prayer for relief, Plaintiff is seeking damages for her humiliation, psychological treatment, lost work, and lost income. (Docket No. 1-2 at ¶¶ 11 & 21).

B. Plaintiff's EEO Complaints

Prior to bringing this action, Plaintiff filed both informal and formal EEO complaints of discrimination against DCMA. Plaintiff made an informal complaint of discrimination on December 30, 2008, in which she alleged non-sexual harassment based on her race and gender. (Docket No. 10-1 at ¶¶ 1-3). The informal complaint did not present a claim for monetary corrective action or otherwise present a claim for damages sounding in tort under the FTCA. (Docket No. 13-1 at ¶ 4). Plaintiff‟s informal EEO complaint was subject to mediation and subsequently, she retracted her employment discrimination complaint against DCMA. (Docket No. 13-1 at ¶ 4).

On March 23, 2009, Plaintiff entered a formal EEO grievance against DCMA alleging that she was discriminated against on the basis of her race, gender, disability, and as reprisal for her December 20, 2008 informal complaint. (Docket No. 10-1 at ¶ 6). On April 13, 2009, Plaintiff‟s EEO complaints were dismissed by the Equal Employment Manager at DCMA because Plaintiff failed to state a claim upon which relief could be granted. (Docket No. 13-1 at ¶ 8). Plaintiff did not present a claim for monetary damages or otherwise present a claim under the FTCA. (Docket No. 13-1 at ¶ 7). DMCA‟s Equal Employment Manager advised Plaintiff of her administrative appeal rights and her right to file a civil action in an appropriate United States District Court within ninety (90) days of her receipt of that decision. (Docket No. 13-1 at ¶ 8) Plaintiff did not file an appeal with the United States Equal Employment Opportunity Commission (EEOC) or file a timely civil action alleging employment discrimination. (Docket No. 13-1 at ¶ 9).

C. Plaintiff's Other Actions

Plaintiff also avers that she attempted to seek remedies under FECA, but was told on March 29, 2010 by a member of the human resources department at DCMA that she could not file a claim under FECA. (Docket No. 10-1 at ¶ 16). DCMA, however, states in its supporting affidavit that it has examined its records diligently and has failed to find the existence of, or a receipt of a claim for damage, injury or death ("Standard Form 95"), or any other documents or writing from Plaintiff that could be construed as an administrative claim for damages against the United States arising out of any negligence or wrongful act on the part of any DCMA employee. (Docket No. 6-1 at ¶ 4).

III. Procedural History

Plaintiff filed a Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania against Scott, on May 3, 2010. (Docket No. 1-2). The Complaint asserts claims of libel and intentional infliction of emotional distress against Scott. (Docket No. 1-2). On May 20, 2010, the case was removed to this Court pursuant to 28 U.S.C. §§1442 and 1446 on the basis that Scott is an employee of the United States and was at all times acting within the course and scope of his employment when the alleged incidents giving rise to Plaintiff‟s claims occurred. (Docket No. 1 at ¶¶ 1& 6). On May 24, 2010, the United States filed a Motion for Substitution of Party on the basis that Scott is a federal employee who ...

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