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BORAWSKI v. HENDERSON

June 10, 2003

RANDY BORAWSKI, PLAINTIFF,
v.
WILLIAM J. HENDERSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mary L. Cooper, District Judge

MEMORANDUM OPINION

This matter comes before the Court on the motions by the United States of America ("the United States" or "the Government") and the defendant William J. Henderson, in his capacity as the Postmaster General ("the Postmaster General"), (collectively "the federal defendants") to (1) substitute the United States for Judith A. Fisco ("Fisco") as defendant;*fn1 and (2) dismiss the amended complaint for (a) lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) and (b) failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). The plaintiff, Randy Borawski ("Borawski"), opposes the motions. (2-19-03 Notice of Obj. to Certif. of Scope of Fed. Empl. ("2-19-03 Notice of Obj."); Pl.'s Mem.)*fn2 For the reasons stated herein, the motions will be granted and the action will be dismissed.

BACKGROUND

I. Facts

Borawski has been both a letter carrier for the United States Postal Service ("USPS") and a shop steward for the National Association of Letter Carriers ("NALC" or "the Union"), since 1979. (Am. Compl. ¶ 7.) At all times relevant to this action, he has been stationed at a post office in Bound Brook, New Jersey. Borawski brings this action against his supervisor, Fisco, and the Postmaster General, seeking damages resulting from, inter alia, an allegedly defamatory memorandum written and disseminated by Fisco. (Id. ¶¶ 2, 16.)

Fisco was a supervisor at a post office in Edison, New Jersey until August 1997 when she was transferred to the Bound Brook post office. (Id. ¶ 9.) According to Borawski, union officials informed him that Fisco "had been pushed out of the Edison facility, where she was a supervisor, on account of numerous bizarre incidents."*fn3 (Id.)

Borawski alleges that Fisco's "bizarre" behavior continued at the Bound Brook post office. (Id. ¶ 10.) Borawski allegedly filed numerous grievances with Fisco related to, among other things, Fisco's behavior. (Id.) "In violation of the collective bargaining agreement," Fisco allegedly refused to process these grievances, and, "instead, sought out ways to retaliate against [Borawski], not allowing him to use an office telephone to conduct union business, attempting to impose lengthy suspensions for de minimis infractions, etc." (Id.) Borawski's alleged "de minimis infractions" included "driving with his postal vehicle door open while turning left into an intersection" and "backing into the post office loading dock with his postal vehicle door open." (Id., Ex. C.) While the Union Management Pairs ("UMPS") found that Fisco's proposed suspensions for these infractions were excessive, it also noted that Borawski's conduct was "contrary to postal regulations." (Id.)

The Postmaster at the Bound Brook post office, Estella Hart ("Hart"), signed a document dated November 10, 1997, in which she (1) agreed that Fisco was violating her collective bargaining obligations; and (2) "assured the Union" that Fisco would be subject to disciplinary action should such violations continue. (Id. ¶ 10 & Ex. D.) As a result, Fisco allegedly "attempted to form a truce with . . . [Borawski] and approached him to `help [her] keep [her] job.'" (Id. ¶ 11.) Hart allegedly advised Borawski "to `stay away' from Fisco and that Fisco was out to get him." (Id. ¶ 12.)

Borawski further alleges that in early 2000 Fisco harassed two other postal employees. (Id. ¶ 14.) NALC members sent a petition related to these and other incidents to the NALC president, who then sent a letter to Hart complaining about Fisco. (Id. ¶ 15.) In alleged retaliation, Fisco wrote a memorandum to Hart including information from Borawski's employee medical records ("the memorandum").*fn4 (Id. ¶ 16.) The memorandum responded to a letter Fisco had received from Hart and addressed, inter alia, sick leave policy, union matters, Fisco's workplace interactions with Borawski, and matters related to other employees she supervised. (Id., Ex. A.) Fisco stated in this letter:

I have documented [] Borowski's behavior to you verbally many times and I do have notes. I have submitted to you as documentation on a grievance a statement from a carrier which states [] Borawski is harassing him to sign an untrue statement. I informed you several months ago when [] Borawski told me he signed himself into a psychiatric ward a couple of years ago, "because if I didn't I would have killed my ex wife." I recently informed you of [] Borawski screaming at me over the phone and threatening to write my ass up. I gave [] Borawski an official discussion in this regard and yet he has made inappropriate comments in front of you, which seem to go unnoticed. I conduct myself in a professional manner with all employees.
(Id.)

Fisco allegedly "published" the memorandum by "disseminating [it] to individuals throughout Bound Brook and the region." (Id. ¶ 16.) Borawski contends that "[a]s a result of the publication of this material about a confidential matter, [he] suffered severe humiliation, embarrassment for his family and himself, anxiety concerning his job security and future with USPS and extreme emotional distress." (Id.)

Borawski's attorney wrote a letter to USPS "demanding an apology and repudiation of [Fisco's] actions." (Id. ¶ 17.) Steven Kocylowskyi responded on behalf of USPS in a letter dated July 25, 2000 ("7-25-00 letter"). (Id., Ex. B.) The 7-25-00 letter stated that (1) USPS "regret[ted] that the comments were made;" (2) Fisco had accepted an assignment in another post office; and (3) the personal information in the memorandum would neither appear in Borawski's personnel file nor have an adverse impact on his USPS employment. (Id.) Fisco was transferred in June 2000 to a post office in Somerville, New Jersey (Id. ¶ 18.)

II. Procedural History

Borawski instituted this action on May 4, 2001. (Compl.) On November 7, 2001, the United States Attorney's Office filed a Certification of Scope of Federal Employment ("11-7-01 Certification") and Notice of Substitution, seeking to substitute the United States for Fisco as defendant. (11-7-01 Certif.; 11-7-01 Notice of Subst.) Borawski filed an objection to the 11-7-01 Certification on November 21, 2001. (11-21-01 Obj.)

The Court entered an order substituting the United States for Fisco, on November 29, 2001. (11-29-01 Order.) However, the Court withdrew the 11-29-01 Order on December 13, 2001, and granted Borawski leave to amend the complaint "for the purpose of clarifying his claim that [Fisco] acted outside the scope of employment in the commission of the acts giving rise to the Complaint," on September 9, 2002. (12-13-01 Order; 9-9-02 Order.)

Borawski filed the amended complaint on December 20, 2002, seeking damages for (1) negligent hiring and retention (Count One); (2) defamation (Count Two); (3) slander per se (Count Three); (4) invasion of privacy (Count Four); (5) intentional infliction of emotional distress (Count Five); and (6) violation of the New Jersey Conscientious Employee Act ("CEPA"), N.J.S.A. ยงยง 34:19-1 through 8 (Count Six). (Am. Compl.) On January 7, 2002, the United States Attorney's Office filed (1) a second Certification of Scope of Federal Employment ("1-7-03 Certification"); (2) a second Notice of Substitution; and (3) a motion to dismiss the amended complaint. (1-7-03 Certif.; 1-7-03 Notice of Subst.; 1-7-03 Notice of Mot.) The Court received Borawski's opposition to the motion and objection to the ...


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