United States District Court, W.D. New York
Dennis A. Clary, Esq., Lewiston, NY, for the Plaintiff.
William Gillen Powers, Esq., U.S. Department of Justice, Civil Division, Environmental Torts Branch, Washington, DC, for the Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
This is an action brought pursuant to the Federal Tort Claims Act ("FTCA") by a former employee of the United States Postal Service ("USPS") who maintains that he was injured by being exposed to a piece of mail containing toxic material. Now before the Court is Defendants' motion (Docket No. [#6]) to dismiss the action for lack of subject-matter jurisdiction. More specifically, Defendants contend that Plaintiff's sole remedy lies under the Federal Employees' Compensation Act ("FECA"), pursuant to which he is already receiving benefits. The application is granted.
Unless otherwise noted, the following facts are taken from Plaintiff's Complaint [#1] and the documents submitted in connection with the motion to dismiss. On February 4, 2011, Plaintiff was working as a supervisor for the USPS in Orlando, Florida, when a subordinate informed him of a strong odor emanating from a mail bag. Plaintiff and USPS disagree as to what happened next.
Plaintiff maintains that he investigated and discovered that a package, possibly bearing a return address from Yemen, was leaking a foul-smelling brown liquid. Moreover, In his FECA claim Plaintiff went into more detail explaining:
The top of the box had cracked open and he saw inside 2/3 light colored (whitish) canisters or jugs (maybe plastic) with wire/tubes connecting them. On the outside of the box he noticed a return address written in RED ink. Part of the address was written in Arabic (or another language using different letters/characters than ours). However, Yemen was written in our alphabet. The "to" address was written in BLACK ink. It was addressed to a 328 (Orlando) zip code and the last digits were ???. There was no customs tag/bill of lading, bar code, postage stamp on the package.
Docket No. [#6-5] at p. 5. In any event, Plaintiff claims that he transported the item to a "hazmat area, " in the course of which he touched the leaking substance and breathed its fumes.
USPS, on the other hand, denies that any spill or leaking package was discovered on February 4, 2011. Instead, USPS maintains that a chemical spill occurred two days earlier, on February 2, 2011, and was cleaned up. USPS further maintains that, at most, on February 4, 2011, Plaintiff smelled residue from the earlier spill.
What is undisputed is that before Plaintiff left work on February 4, 2011, he sent an email to his supervisor, Cynthia Hickman ("Hickman"), about the incident. The email, which was sent on February 4, 2011 at 8:18 p.m., states as follows:
Subject: Possible Hazmat/Small Apps
At approximately 1840 hrs, employee Paz Oquendo came to me to report a strong odor on S2 of the small apps [Automated Package Processing System]  in the belly. [According to Plaintiff, the "belly" is the interior area of a large conveyor-belt APPS machine]
I immediately cleared the area of employees (sent to breakroom) and took the gpc [general purpose container]  of empty sacks outside to the Haz-Mat shed. The odor is strong and isolated to the back of the belly of the small apps. I then assisted TME's in opening all doors on the APPS side of the building, front and back. MDO Cynthia Hickman was also notified during this time period. A portable fan is currently being used to assist in airing out the area as it is still lingering in this area. No employees are currently working in this area. T3 has been notified (MDO - Carlos Santos).
(emphasis added). The striking feature of this email, in the Court's view, is the absolute lack of any mention of a leaking package, let alone one from Yemen with cannisters or jugs connected by wires or tubing. Instead, Plaintiff's statement indicates only that he moved a container of empty mail sacks. Plaintiff, though, in his Complaint in this action, which did not attach a copy of his email, implies that his email specifically notified Hickman about a leaking package.
Of course, since the email did not mention a leaking package from Yemen with cannisters or jugs connected by wires or tubing, or any package at all, it also did not request that any such package be retained or analyzed. Nevertheless, Plaintiff now faults USPS for not retaining and testing the alleged package which, he maintains, was probably disposed of by a USPS supervisor on or about February 4, 2011. On this point, Plaintiff suggests ...