A Connecticut postal worker repeatedly asked for a transfer to another city and was repeatedly ignored or refused. Then a supervisor physically assaulted him, pushing him and screaming that he would never be transferred. The employee sued.

What happened. “Sharan,” a permanent resident of the United States, was born in India. Hired as a mail handler in 1997 in Wallingford, he frequently asked to be transferred to Hartford, which is closer to his home. In September 2003, a supervisor (not his own) rushed at him, hitting him in the chest and shoulder and jabbing him in the left eye. He allegedly screamed, “I’ll never let you go to the Hartford plant.” Sharan’s own supervisor pulled the offender away, but Sharan filed an internal equal employment opportunity (EEO) complaint.

Sharan believed the assault was motivated by national origin bias and retaliation for his complaints about being refused the transfer. But he said nothing about those beliefs in the complaint, describing only the assault. When he sued, he also argued that the emotional distress caused by the attack was compensable under the Federal Tort Claims Act (FTCA). A federal district court judge dismissed his assault claim as less than an adverse employment action and said there was no jurisdiction to decide an FTCA charge. Sharan appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges ruled that Sharan could not sue for retaliation and national origin bias because he had not mentioned them in his EEO complaint. Further, they wrote, “The physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions.”

But the FTCA question was complex: The law waives the United States’ sovereign immunity for certain acts of injury committed by federal employees. But when the tort victim is a federal employee, “work-related injuries are compensable only under the Federal Employees’ Compensation Act (FECA),” judges said. However, FECA doesn’t cover emotional distress. One federal circuit (the 9th, covering AK, AZ, CA, HI, ID, MT, NV, OR, and WA) has said courts should resolve the issue, while eight others have said only the Secretary of Labor can clarify where FTCA stops and FECA begins. Judges here went with the majority, leaving the question open. Mathirampuzha v. USPS, U.S. Court of Appeals for the 2nd Circuit, No. 06-4384-cv (11/3/08).

Point to remember: Plaintiffs charging acts of bias and retaliation must clearly include that information in their EEO complaints, whether filed internally or to the federal agency. If they don’t, they’ve “failed to exhaust administrative remedies.”