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UNDERWOOD v. USPS

June 8, 1990

FELIX N. UNDERWOOD
v.
UNITED STATES POSTAL SERVICE



The opinion of the court was delivered by: NIXON

 JOHN T. NIXON, UNITED STATES DISTRICT JUDGE

 Pending before the Court is the defendant's motion to dismiss and the plaintiff's response.

 FACTS

 The plaintiff was a United States Post Office employee assigned to the Mt. Juliet, Tennessee, branch of the United States Post Office at the time the plaintiff was allegedly injured by the defendant's employee, Marjorie Gaddes Boswell. Boswell was the Postmaster of the Mt. Juliet, Tennessee, branch of the United States Post Office. Boswell was also the plaintiff's supervisor.

 The plaintiff alleges that on September 26, 1986, the plaintiff was counting mail when Boswell approached him and began to verbally attack him. Boswell then allegedly called the plaintiff into her office and continued her verbal attack. The plaintiff allegedly became sick and stated that he was going home to see a doctor. Boswell allegedly told the plaintiff that he had to stay at work and finish the mail count. The plaintiff filled out a leave request form for sick leave and called his wife to pick him up because he was too sick to drive. While waiting for his wife to arrive, the plaintiff allegedly began to experience severe chest pains and difficulty in breathing. The plaintiff then allegedly lost consciousness and was taken by ambulance to a hospital. Boswell allegedly ordered the plaintiff's fellow employees not to help the plaintiff. Finally, Boswell allegedly refused to provide the plaintiff's wife with necessary medical and insurance forms.

 The plaintiff then filed the present claim for damages under the Federal Tort Claims Act, 28 U.S.C. § 1346, after exhausting his administrative remedies.

 DISCUSSION

 The defendant seeks dismissal of the plaintiff's Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., claim. The defendant contends that the plaintiff is precluded from bringing a claim under the Federal Tort Claims Act because the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. (hereinafter "FECA"), is the plaintiff's sole and exclusive remedy. *fn1"

 FECA provides in pertinent part as follows:

 
The liability of the United States or an instrumentality thereon . . . 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 . . . .

 5 U.S.C. § 8116(c). In Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-194, 74 L. Ed. 2d 911, 103 S. Ct. 1033 (1983), the Supreme Court explained FECA's exclusive liability provision:

 
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. In enacting this provision, Congress adopted the "quid pro quo" - commonly found in the 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.

 The plaintiff, however, argues that the Federal Employees Compensation Act is not the plaintiff's sole and exclusive remedy. The plaintiff argues that Congress created a new right to relief when Congress amended the Federal Tort Claims Act, 28 U.S.C. § 2679(b), by enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988 ...


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