Klescewski v. United States

843 F. Supp. 543, 1993 U.S. Dist. LEXIS 19215, 1993 WL 588356
CourtDistrict Court, D. South Dakota
DecidedNovember 12, 1993
DocketCiv. No. 93-5058
StatusPublished
Cited by2 cases

This text of 843 F. Supp. 543 (Klescewski v. United States) is published on Counsel Stack Legal Research, covering District Court, D. South Dakota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klescewski v. United States, 843 F. Supp. 543, 1993 U.S. Dist. LEXIS 19215, 1993 WL 588356 (D.S.D. 1993).

Opinion

ORDER GRANTING MOTION TO DISMISS

BATTEY, District Judge.

PROCEDURAL HISTORY

This is a Federal Tort Claims Act (FTCA) action brought by plaintiff Edward Klescewski (Klescewski), a former Postal Service employee, and his wife, Darla Klescewski. The complaint characterizes the cause of action as one for intentional infliction of emotional distress. Klescewski alleges that during the course of his employment with the Postal Service, postal employees and supervisors, acting as agents of the United States, subjected him to a course of harassment and humiliation throughout the fall of 1991, thereby causing him to suffer an extreme disabling emotional distress. Darla Kleseewski’s claim is a derivative action of loss of consortium caused by the injury inflicted upon her husband.

The United States has moved to dismiss the plaintiffs’ action, arguing that plaintiffs’ sole remedy is through the Federal Employees’ Compensation Act (FECA). 5 U.S.C. § 8101 et seq. The Court agrees.

FACTS

Plaintiff Edward Klescewski is a Vietnam veteran and former Postal Service employee. Klescewski has suffered from post-traumatic stress disorder for a considerable length of [544]*544time. His employer knew of this condition throughout his employment.

In 1991, Klescewski suffered an ankle injury while delivering the mail. This injury and the surrounding claims by Klescewski led to a meeting between him and two postal inspectors. Klescewski was told he had cost the Postal Service a lot of money and trouble. Klescewski felt as though his job was in jeopardy because of his injury and its effect on his work.

Later in 1991, Klescewski was assigned an additional street on his delivery route. This addition became the source of further problems for him as he could no longer complete his route in eight hours. His supervisor criticized Klescewski for being too slow and accused him of having a “don’t care” attitude. Again, this added stress to Klescewski’s employment.

Finally, the effects of the Gulf War during this 1991 time period aggravated Klescewski’s post-traumatic stress disorder to the point that, coupled with the abusive behavior he was receiving at work, he suffered an emotional breakdown. The breakdown necessitated an extended hospitalization and resulted in his retirement from the Postal Service.

On August 13, 1992, Klescewski filed an application for benefits under the FECA seeking compensation for his emotional condition allegedly caused or aggravated by his employment with the Postal Service. His claim was approved by the Secretary of Labor and he currently receives FECA benefits equal to 75 percent of his former Postal Service salary, tax free, in addition to payment of his medical bills. Klescewski and his spouse now seek further compensation under the FTCA for the emotional injury he suffered while working as a letter carrier.

DISCUSSION

The United States filed a motion under Fed.R.Civ.P. 12(b)(1) to dismiss plaintiffs’ complaint for lack of jurisdiction over the subject matter. In the Court’s consideration of the motion, it has considered matters outside the pleadings. In considering a motion under Fed.R.Civ.P. 12(b)(1) the Court need not confine itself to an examination of the bare allegations of the complaint as is required when considering a motion under Fed.R.Civ.P. 12(b)(6). See, e.g., Osborn v. United States, 918 F.2d 724 (8th Cir.1990). In an abundance of caution the Court has considered converting the motion to a motion for summary judgment under Fed.R.Civ.P. 56; however, only a motion under Fed.R.Civ.P. 12(b)(6) may be so converted. Thus, the Court does decide the factual issues presented by the United States’ motion. Osborn, 918 F.2d at 729. In such consideration, the plaintiffs, not the moving party, has the burden of proof. Mortensen v. First Federal Savings & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977).

Plaintiffs’ complaint might be sufficient to survive a facial attack. It is a straightforward allegation of intentional tort committed by the United States Postal Service, its agents and employees. The only hints of Klescewski’s claim under FECA are two general allegations. In paragraph V it is alleged that he was an employee of the United States Postal Service. In paragraph VII it is alleged that “Edward Klescewski’s disorder had been exacerbated [by] baseless threats of criminal prosecution in retaliation for his exercise of his rights in filing workers’ compensation claims for on-the-job injuries----” (Emphasis supplied.) Thus, on its face, the Court is alerted to the fact that the FECA might apply to his claims.

The Court, however, need not dismiss the action by reason of its facial examination because the plaintiffs’ complaint fails to survive a “factual” attack. In the “factual” examination the Court finds it unnecessary to conduct an evidentiary hearing because the facts are sufficiently developed.

The United States claims that plaintiffs’ action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. is barred by the Federal Employees’ Compensation Act (FECA) as FECA provides the exclusive remedy for federal employees injured on the job. The FECA provides in pertinent part:

The liability of the United States or an instrumentality thereof ... with respect to the injury ... of an employee is exclusive and instead of all other liability of the [545]*545United States or the instrumentality to the employee, his legal representative, spouse, ... and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury ... in a direct judicial proceeding, in a civil action ... or under a Federal tort liability statute.

5 U.S.C. § 8116(c).

The Supreme Court addressed the exclusivity of FECA in Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94, 103 S.Ct. 1033, 1036, 74 L.Ed.2d 911 (1983) by noting that

FECA’s exclusive-liability provision was enacted in substantially its present form in 1949 ... It 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.

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Bluebook (online)
843 F. Supp. 543, 1993 U.S. Dist. LEXIS 19215, 1993 WL 588356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klescewski-v-united-states-sdd-1993.