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WARD v. BROWN

December 5, 2005.

MAURICE WARD, Plaintiff,
v.
JESSIE BROWN V.A. HOSPITAL, Defendant.



The opinion of the court was delivered by: MARK FILIP, District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Maurice Ward ("Plaintiff" or "Ward"), brings this action against his former employer, the Jessie Brown V.A. Hospital ("Hospital"),*fn1 under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346 (2005). (D.E. 1.)*fn2 The United States of America (also "Government) has appeared and filed a motion to dismiss (D.E. 15 (also "Motion")), in which it argues, inter alia, that Ward has failed to name the proper defendant for a FTCA claim (i.e., the United States).

By way of brief summary, Ward claims an invasion of his right to privacy as protected by the Illinois Constitution Article 1, Section 6, and purports to use the FTCA to assert the claim against the Hospital. (D.E. 1.) Before the Court is the Government's motion to dismiss Ward's complaint. (D.E. 15.) The Government argues that this Court lacks subject matter jurisdiction over the case. (D.E. 17.) In support of this argument, the Government asserts that Ward: named the wrong party as defendant; failed to exhaust mandatory administrative remedies under the FTCA; and failed to meet the administrative statute of limitations of the FTCA. (See D.E. 17 at 3-6.) Alternatively, the Government argues that the lawsuit is barred by the doctrine of res judicata because of failed litigation that Ward initiated against the Secretary of the Department of Veterans Affairs in 1997, which suit was dismissed on summary judgment and which dismissal was affirmed on appeal. (See id. at 4-6.) In this regard, the Government argues that, to the extent that any part of this case is not barred by the doctrine of res judicata, Ward's exclusive remedy, if any, laid under the Federal Employees Compensation Act, 5 U.S.C. § 8116(c) (2005) ("FECA"). (See id. at 6.)

  As explained further below, the case suffers from multiple, independent defects. As a result, the Government's Motion is granted.

  FACTUAL BACKGROUND

  Beginning in September 1993, Ward worked as a medical records technician at the Hospital. (D.E. 1 ¶ 4.) On November 15, 1996, Ward filed an EEOC complaint claiming that a co-employee, Mary Toles ("Toles") had negligently disclosed personal information contained in Ward's employment file to other hospital employees, causing him injuries. (Id. ¶¶ 14, 15.) He also filled out a "point of contact" form, which was the Hospital's procedure for employees "to voice objectionable practices to their superiors." (Id. ¶ 15.) (Although Toles was a nurse manager, she was not Ward's supervisor.) (Id.) Ward alleged that Toles disclosed to co-employees Ward's college grade point average, that "he was kicked out of the [military] reserves," and that he left a job at the Postal Service. (Id. ¶¶ 13-14.) In December 1996, Ward dropped his EEOC complaint. (Id. ¶ 15.)

  On January 15, 1997, Ward heard some co-workers discussing the fact that Ward had been sexually molested as a child. (Id. ¶ 16.) Following the incident, Ward felt suicidal. (Id. ¶ 19.) In February 1997, he admitted himself to Hines V.A. Hospital where he was an inpatient for four days. (Id.) During those four days, Ward began to feel better and wanted to get back to work. (Id. ¶ 19.) The same month, Ward returned to work, but he was reassigned to a different hospital ward. (Id. ¶ 20.) Ward continued working at the Hospital until October 2001. (D.E. 19, Ex. 1 (Ward's resignation form from the Hospital dated Oct. 11, 2001).)

  In March 1997, an outpatient psychiatrist diagnosed Ward with major depression and post-traumatic stress disorder. (D.E. 1 ¶ 19.) This psychiatrist allegedly told Ward that his illness was caused by Toles's disclosure to co-employees that Ward had been sexually abused. (Id.)

  In addition, in March 1997, Ward filed a second EEOC complaint against Toles, this time alleging harassment on the basis of sex, in violation of Title VII. (Id. ¶ 20.) On November 18, 1997, Ward filed a lawsuit in federal district court against the Department of Veterans Affairs (the "VA"), alleging workplace sexual harassment in violation of his rights under the Civil Rights Act of 1964, 42 U.S.C. § 2000e. (Id. ¶ 20); Ward v. Sec'y, Dep't of Veterans Affairs, No. 97 C 8024, 1999 WL 1045208, at *1 (N.D. Ill. Nov. 12, 1999) (Marovich, J.). In support of his harassment claim, Ward alleged misconduct on Toles's part as described in the two EEOC complaints (i.e., disclosure of his education, work history, and sexual abuse). Id. at *2. The district court entered summary judgment against Ward because there was no meaningful evidence offered in support of his claims. Id. at *3. On appeal, the Seventh Circuit affirmed the district court's decision. Ward v. West, No. 99-4164, 2000 WL 868587, at *1 (7th Cir. June 19, 2000) (unpublished).

  On June 22, 2005, Ward filed the present action in this Court against the Hospital and Toles, asserting an invasion of privacy under the Illinois Constitution and the FTCA.*fn3

  I. Legal Standards

  The FTCA states that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. The FTCA bars claimants from bringing suit against the United States in federal court until they have exhausted their administrative remedies. 28 U.S.C. § 2675; McNeil v. United States, 508 U.S. 106, 113 (1993). "A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented." 28 U.S.C. 2401(b); Kanar v. United States, 118 F.3d 527, 528 (7th Cir. 1997). The Government has moved to dismiss Ward's FTCA claims pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction on multiple, independent grounds. (D.E. 15.) Proceeding under Rule 12(b)(1) has been deemed appropriate in cases involving all of these grounds. First, precedent teaches that a failure to name the correct defendant in an FTCA suit, i.e., the United States, is appropriately dealt with on jurisdictional grounds, when the plaintiff's attempt to correct the error by amending the complaint occurs after the six month statutory time period provided by the FTCA. See, e.g., Stewart v. United States, 655 F.2d 741, 742 (7th Cir. 1981) (affirming the district court's decision to dismiss FTCA suit where the plaintiff sought to amend her complaint to name the United States after the six month period permitted for filing suit under the FTCA had run); accord, e.g., id. (discussing with approval the district court's holding that: "the limitation in the Act [FTCA] on time for bringing suit was jurisdictional in nature and not subject to equitable considerations.") (citation omitted).

  Second, precedent instructs that treating a motion to dismiss as a motion for lack of subject matter jurisdiction is appropriate where defendants have moved to dismiss plaintiffs' claims on the basis of failure to comply with Section 2675(a) of the FTCA by exhausting administrative remedies before filing suit under the FTCA. See, e.g., Deloria v. Veterans Admin., 927 F.2d 1009, 1111 (7th Cir. 1991) (stating that showing compliance with 28 U.S.C. § 2675(a) is a "jurisdictional prerequisite to suit"); Christides v. Zuckerman, No. 03 C 6319, 2004 WL 1005750, at *1 (N.D. Ill. May 4, 2004) (Pallmeyer, J.) (applying Rule 12(b)(1) to grant the government's motion to dismiss with prejudice where plaintiff failed to exhaust administrative remedies under the FTCA within the prescribed limitations period); Carter v. Soc. Sec. Field Office, No. 02 C 5526, 2004 WL 609316, at *1 n. 4 (N.D. Ill. Mar. 22, 2004) (Guzman, J.) (treating defendant's motion to dismiss plaintiff's potential FTCA claims for failure to exhaust administrative remedies as a Rule 12(b)(1) motion); see generally Gervasio v. United States, 627 F.Supp. 428, 430 (N.D. Ill. 1986) (Kocoras, J.) ("Rule 12(b)(1) is the proper vehicle for dismissing cases which are untimely and over which no subject matter jurisdiction exists because the plaintiff has failed to exhaust his administrative remedies before coming to court.").

  Likewise, courts have reviewed motions to dismiss as Rule 12(b)(1) motions in cases that involve a failure to meet the administrative statute of limitations for the FTCA. See, e.g., Barnhart v. United States, 884 F.2d 295, 296 (7th Cir. 1989) (discussing Crawford v. United States, 796 F.2d 924, 928-30 (7th Cir. 1986), and stating that, in Crawford, the Seventh Circuit established that FTCA administrative statute of limitations issues are "preliminary jurisdictional matters" that are "appropriately dealt with under Rule 12(b)(1) of the Federal Rules of Civil Procedure."). Finally, precedent teaches that Rule 12(b)(1) is the proper rule to apply when reviewing a motion to dismiss an FTCA claim on the basis that FECA is the plaintiff's exclusive remedy. See, e.g., Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995); Heilman v. United States, 731 F.2d 1104, 1109-10 (3d Cir. 1984) ...


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