Not Every Unpleasant Statement Is Actionable in Court

Bettina Jordan works for the United States Postal Service. In 2012, she filed two separate actions against the Postmaster General, Patrick Donahoe, alleging discrimination under Title VII and the Rehabilitation Act. In February of 2012, Jordan suffered a physical injury on the job and accepted a limited duty assignment. She has collected workers’ compensation benefits since the injury. She did not appreciate, however, the manner in which the USPS handled her workers’ compensation reimbursement, so she filed a third lawsuit, alleging retaliation, defamation, and intentional infliction of emotional distress. All three cases were filed in the Richmond Division of the Eastern District of Virginia.

USPS employees seeking workers’ compensation must submit periodic documentation to the Office of Workers’ Compensation Programs (“OWCP”) showing their continued eligibility for benefits. Jordan was entitled to compensation based on a four-hour work day due to her limited duty assignment, but because of an administrative error, USPS had been compensating her for an eight-hour work day through July 2012. In August of 2012, an OWCP claims manager changed Jordan’s claim forms to accurately reflect the number of work hours and, upon finding backdated and inconsistent medical notes Jordan had submitted, undertook a reevaluation of Jordan’s claim in September 2012. The claims manager wrote to Jordan questioning her submissions and asking for clarification. She also sent the letter to a Department of Labor Claims Examiner and the USPS Manager of Health and Resource Management.

Jordan did not appreciate being asked these questions. She sued, claiming that the way in which USPS handled her workers’ compensation reimbursement was in retaliation for her discrimination claims. She also contended that the claim manager’s letters defamed her and that they intentionally inflicted emotional distress. The USPS, through Mr. Donahoe, moved for summary judgment. The court granted the motion.

To establish a claim of retaliation, a plaintiff must show that she participated in a protected activity and suffered an adverse employment action and that a causal connection existed between the protected activity and the adverse action. A plaintiff must show that a reasonable employee would have found the employment action materially adverse. The court agreed that Jordan’s USPS.jpgfiling of a discrimination claim constituted protected activity, but it rejected Jordan’s argument that the reduction in her compensable hours and investigation of her filings constituted an adverse employment action. Rather, the court found that the USPS was merely correcting an administrative error and such action was not materially adverse.

Even if the action was materially adverse, Jordan’s claim would fail because she could not demonstrate a causal connection between her discrimination charge and the USPS processing of her workers’ compensation claim. Mr. Donahoe provided affidavits indicating that the employees processing the claims had no knowledge of the discrimination actions, and Jordan did not rebut the affidavits.

The court rejected Jordan’s argument that the close temporal proximity between her discrimination claims and the adverse employment action suggested a causal connection between the two. The court found that the nine to ten month lapse between the two events was too great to suggest temporal proximity.

Jordan also sought recovery under the Federal Torts Claim Act (FTCA) for slander, libel, defamation and intentional infliction of emotional distress based on the claims manager’s letters. The court found that these claims failed because Jordan could not demonstrate any elements of the claims and because the FTCA bars her from bringing them in federal court. Defamation requires publication of a false, defamatory statement with the necessary intent. Even if Jordan could prove that the statements were published, she did not claim that any of the allegedly defamatory statements were untrue and she did not allege that the statements were made with defamatory intent. Virginia adheres to a negligence standard for intent, and here, the claim manager’s letter indicated the opposite of negligence. She reviewed Jordan’s documents and requested additional information in response to inconsistent and backdated medical notes that Jordan had submitted. The claims manager had reasonable grounds for making these inquiries.

Likewise, Jordan failed to establish intentional infliction of emotional distress. This tort requires a plaintiff to show that (1) the wrongdoer acted intentionally or recklessly; (2) the conduct offended generally accepted standards of decency and morality and thus was outrageous and intolerable; (3) a causal connection existed between the wrongdoer’s conduct and the victim’s emotional distress and (4) the victim’s emotional distress was severe. The law does not favor such claims and liability arises only when the emotional distress is so extreme and severe that no reasonable person could be expected to endure it. The court found that the claim manager’s letter and investigation did not rise to the level of outrageous and intolerable conduct.

Additionally, the FTCA barred Jordan’s tort claims. The FTCA waives the Federal Government’s sovereign immunity for certain torts, but it requires a plaintiff to present her claim to the appropriate federal agency before filing suit. Here, Jordan failed to file a claim with the USPS seeking a remedy for defamation and intentional infliction of emotional distress. Additionally, the FTCA waiver does not allow parties to sue the Federal Government for libel or slander. Because Jordan could not demonstrate the elements of her claims and because the FTCA bars her claims, the court granted summary judgment to Mr. Donahoe on all counts.

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