     06-4384-cv
     Mathirampuzha v. Potter

1                         UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                August Term, 2007

4    (Argued: March 17, 2008                      Decided: November 3, 2008)

5                              Docket No. 06-4384-cv

6                    -------------------------------------

7                              Joseph MATHIRAMPUZHA,

8                               Plaintiff-Appellant,

9                                      - v -

10                      John POTTER, Postmaster General,
11                          United States of America,

12                             Defendants-Appellees,

13                                   Ron Sacco,

14                                  Defendant.*

15                   -------------------------------------

16   Before:     WINTER, STRAUB, and SACK, Circuit Judges.

17               Appeal from a judgment of the United States District

18   Court for the District of Connecticut (Janet Bond Arterton,

19   Judge).   The district court granted summary judgment for

20   defendants on plaintiff's Title VII claims and dismissed his

21   claims under the Federal Tort Claims Act for lack of subject-

22   matter jurisdiction.      We agree with the district court's

23   resolution of plaintiff's Title VII claims: his hostile work

24   environment and retaliation claims were not exhausted, and on his


           *
            The Clerk of Court is directed to amend the official
     caption as set forth above.
1    remaining claims he failed to submit evidence on which an

2    inference of discrimination could reasonably be based.   We also

3    agree with the district court that the Federal Employees'

4    Compensation Act vests the Secretary of Labor with exclusive

5    authority over federal employees' claims arising from work-

6    related injuries.   But we disagree with the district court's

7    dismissal of the plaintiff's emotional-distress claim under the

8    Federal Tort Claims Act for lack of jurisdiction.   We conclude

9    that it should have stayed proceedings pending a final

10   determination by the Secretary of Labor regarding Federal

11   Employees' Compensation Act coverage.

12             Affirmed in part, vacated in part, and remanded.

13                             W. MARTYN PHILPOT, JR., New Haven, CT,
14                             for Appellant.

15                             LISA E. PERKINS, Assistant United States
16                             Attorney for the District of Connecticut
17                             (Kevin J. O'Connor, United States
18                             Attorney, Sandra S. Glover, Assistant
19                             United States Attorney, of counsel),
20                             Hartford, CT, for Appellees.

21   SACK, Circuit Judge:

22             Plaintiff Joseph Mathirampuzha appeals from a final

23   judgment of the United States District Court for the District of

24   Connecticut (Janet Bond Arterton, Judge).   This appeal arises

25   principally from an alleged physical assault at a postal facility

26   on September 29, 2003, by Ron Sacco, a supervisor, against the

27   plaintiff, a postal employee.   The plaintiff asserts claims under

28   Title VII of the Civil Rights Act of 1964 ("Title VII"), 42

29   U.S.C. § 2000e et seq., and the Federal Tort Claims Act ("the

                                      2
1    FTCA"), 28 U.S.C. § 2671 et seq.       The district court granted

2    summary judgment in favor of the defendant on the Title VII

3    claims and dismissed the FTCA claims for lack of subject-matter

4    jurisdiction.   Mathirampuzha v. U.S. Postal Serv., No. 3:04cv841,

5    2006 WL 2458669, 2006 U.S. Dist. LEXIS 62738 (D. Conn. Aug. 21,

6    2006).

7              With regard to the plaintiff's Title VII claims, the

8    district court properly granted summary judgment.       The plaintiff

9    failed to exhaust his hostile work environment and retaliation

10   claims, and the physical assault and denial of transfer requests

11   he alleges were, respectively, not an adverse employment action

12   and not ascribable to discriminatory motive or intent.       That

13   portion of the judgment of the district court is affirmed.

14             With regard to the plaintiff's FTCA claims, the Federal

15   Employees' Compensation Act (the "FECA"), 5 U.S.C. § 8101 et

16   seq., vests the Secretary of Labor with exclusive authority over

17   federal employees' claims arising from work-related injuries.

18   Unless it is clear that the FECA does not apply, federal courts

19   may not entertain FTCA claims.   Dismissal of such claims for lack

20   of jurisdiction, however, is not always the proper disposition.

21   In this case, because there was a substantial question regarding

22   whether the plaintiff's emotional-distress claim is covered under

23   the FECA and the Secretary of Labor had not yet rendered a

24   decision regarding his FECA coverage, the district court should

25   not have dismissed that FTCA claim for lack of jurisdiction.        We

26   therefore vacate that portion of the district court's judgment.

                                        3
1    On remand, the district court should reinstate the FTCA claim and

2    stay proceedings pending a final determination by the Secretary

3    of Labor regarding FECA coverage.

4                                 BACKGROUND

5              "In setting forth the facts underlying this appeal from

6    the district court's grant of summary judgment to the defendants,

7    we construe the evidence in the light most favorable to the

8    plaintiff, drawing all reasonable inferences and resolving all

9    ambiguities in his favor."   Colavito v. N.Y. Organ Donor Network,

10   Inc., 438 F.3d 214, 217 (2d Cir. 2006).

11             The plaintiff, of Indian national origin, is a lawful

12   permanent resident of the United States.   Since 1997, he has been

13   employed by the United States Postal Service as a mail handler at

14   the processing and distribution center in Wallingford,

15   Connecticut.

16             Soon after the plaintiff began working for the Postal

17   Service, he requested a transfer to the processing and

18   distribution center in Hartford, Connecticut, which is closer to

19   where he and his family live.   That request was denied.   The

20   plaintiff made several more requests, all of which were ignored

21   or denied.

22             On September 29, 2003, the plaintiff was physically

23   assaulted by Ron Sacco, a supervisor at the Wallingford plant.

24   (Sacco was not the plaintiff's direct supervisor when the

25   incident occurred.)   Sacco grabbed the plaintiff's arm, punched

26   him in the shoulder and the chest, spit in his face, and poked

                                      4
1    him in the eye.    Sacco also shouted, "Joe, I['ll] never let you

2    go to [the] Hartford plant."

3              The plaintiff's direct supervisor, Claudio Scirocco,

4    quickly intervened -- or, as the plaintiff phrased it, "came to

5    save my life."    A union representative promptly arrived on the

6    scene and brought the plaintiff to the office of a higher-ranking

7    Postal Service supervisor.    But the supervisor laughed when the

8    plaintiff told her what had happened.    The plaintiff's union

9    continued to advocate on his behalf, however, and Sacco was

10   ultimately issued a "Letter of Warning" for "Conduct Unbecoming a

11   Postal Supervisor" and was transferred to another work assignment

12   for at least a year.

13             The plaintiff asserts that his confrontation with Sacco

14   caused him physical injury and severe emotional distress.    He

15   suffered chest pains and contusions to his shoulder blade,

16   required eye surgery, and fell into a depression.

17             The plaintiff promptly pursued "pre-complaint

18   counseling" pursuant to 29 C.F.R. § 1614.105 for "[a]ggrieved

19   persons who believe they have been discriminated against."      He

20   then filed an administrative "EEO Complaint of Discrimination in

21   the Postal Service" on November 2, 2003.    The EEO complaint

22   alleged a single act of discrimination: the incident involving

23   Sacco on September 29, 2003.

24             The plaintiff subsequently filed suit in federal court

25   in Connecticut.    In addition to the physical assault by Sacco,

26   the plaintiff's amended complaint alleges that Sacco has

                                       5
1    "verbally harassed" him since 1999, has "subjected him to

2    disparate treatment by denying him approved lunch breaks and

3    assistance in performing work duties," and has retaliated against

4    him for complaining about his treatment.   Am. Compl. ¶ 12.   By

5    failing to stop such conduct, the plaintiff charges, the

6    Postmaster is liable under Title VII for subjecting him to a

7    hostile work environment.1   The plaintiff also asserts claims

8    under the FTCA, alleging the same facts and demanding relief as a

9    result of Sacco's assault, a hostile work environment, and the

10   Postal Service's negligent supervision of its employees.2

11             On August 21, 2006, the district court granted the

12   defendants' motion for summary judgment on the plaintiff's Title

13   VII claims and their motion to dismiss his FTCA claims for lack

14   of subject-matter jurisdiction.

15             The plaintiff appeals.




          1
            The plaintiff also asserted a claim under the Connecticut
     Fair Employment Practices Act, Conn. Gen. Stat. § 46a-60. The
     district court dismissed the state-law claim as preempted by
     Title VII, Mathirampuzha v. Potter, 371 F. Supp. 2d 159, 161-63
     (D. Conn. 2005), a decision the plaintiff does not challenge on
     appeal.
          2
            The plaintiff's FTCA claims were filed as a separate
     action and consolidated with his Title VII claims by order of the
     district court.

                                        6
1                                  DISCUSSION

2               I.    Standards of Review

3               "We review a district court's grant of summary judgment

4    de novo, construing the evidence in the light most favorable to

5    the non-moving party and drawing all reasonable inferences in

6    [that party's] favor."     Allianz Ins. Co. v. Lerner, 416 F.3d 109,

7    113 (2d Cir. 2005).     "We will affirm the judgment only if there

8    is no genuine issue as to any material fact, and if the moving

9    party is entitled to a judgment as a matter of law."     Id. (citing

10   Fed. R. Civ. P. 56(c)).

11              Where, as here, the district court's determination

12   whether it had subject-matter jurisdiction is based on an

13   interpretation of federal law, our review of her determination is

14   de novo.   See Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d

15   Cir. 2004).

16              II.    Plaintiff's Title VII Claims

17              Title VII prohibits employment-related discrimination

18   on the basis of race, color, religion, sex, or national origin

19   and retaliation against employees who complain about

20   discrimination.     In 1972, Congress extended Title VII's

21   protection to employees of the federal government, including

22   postal workers.3    42 U.S.C. § 2000e-16(a); see also Loeffler v.


          3
            We note that we have previously assumed without analysis
     that Congress extended Title VII's prohibition on retaliation to
     the federal sector. See Terry v. Ashcroft, 336 F.3d 128, 140-41
     (2d Cir. 2003); Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d
     Cir. 2001), cert. denied, 536 U.S. 922 (2002). The Supreme Court
                                                        (continued...)

                                        7
1    Frank, 486 U.S. 549, 558-59 (1988); Simonton v. Runyon, 232 F.3d

2    33, 35 (2d Cir. 2000).   Here, the plaintiff seeks relief under

3    Title VII for being subjected to a hostile work environment on

4    the basis of his race, color, and national origin.    His amended

5    complaint may be fairly read also to seek relief under Title VII

6    based upon the encounter with Sacco on September 29, 2003, and

7    Sacco's retaliatory motive for his conduct on that day.   The

8    district court determined that the plaintiff's hostile work

9    environment and retaliation claims are barred because he failed

10   to comply with Title VII's administrative exhaustion

11   requirements, and the remainder of his Title VII claim is

12   meritless because he failed to establish an adverse employment

13   action.   We agree with that result, although our reasoning

14   differs somewhat from that of the district court.

15   A.   Exhaustion

16             "Prior to bringing suit under . . . Title VII . . . , a

17   federal government employee must timely exhaust the

18   administrative remedies at his disposal."   Belgrave v. Pena, 254

19   F.3d 384, 386 (2d Cir. 2001) (per curiam) (citation and internal

20   quotation marks omitted).


          3
           (...continued)
     recently clarified that the federal-sector provision of the Age
     Discrimination in Employment Act, 29 U.S.C. § 633a(a), prohibits
     retaliation based on the filing of an age discrimination
     complaint, but the Court did not address the issue of whether
     Title VII bans retaliation in federal employment. See Gomez-
     Perez v. Potter, 128 S. Ct. 1931, 1941 n.4 (2008). Because we
     ultimately conclude that the plaintiff's retaliation claim fails
     for lack of exhaustion, we simply highlight this question and
     leave its resolution for a more appropriate case.

                                      8
 1             Regulations promulgated by the Equal
 2             Employment Opportunity Commission ("EEOC")
 3             establish the applicable administrative
 4             procedures that a federal employee must
 5             exhaust prior to filing suit. The EEOC
 6             regulations require that the aggrieved
 7             employee, inter alia, (1) consult with a
 8             counselor at the relevant agency's Equal
 9             Employment Office ("EEO") within 45 days of
10             the alleged discriminatory act, and, if the
11             matter is not resolved after a mandatory
12             counseling period, (2) file a formal written
13             administrative complaint ("EEO complaint")
14             within 15 days of receipt of the EEO
15             counselor's notice of final interview and
16             right to file a formal complaint ("EEO
17             notice"). The employee may then file a civil
18             action (i) within 90 days of notice of a
19             final agency decision on his or her EEO
20             complaint, or (ii) after 180 days from the
21             filing of the EEO complaint if the agency has
22             not yet rendered a decision.

23   Id. (citing 42 U.S.C. § 2000e-16(c) and 29 C.F.R.

24   §§ 1614.105(a)(1), 1614.106(a) & (b), and 1614.408(a) & (b)).4

25   "This court has treated the requirement that a federal employee

26   bring a complaint to his or her EEO for resolution, see 29 C.F.R.

27   § 1614.105, as analogous to the requirement that a private sector

28   employee first bring a complaint to the attention of the [EEOC]

29   for resolution."   Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir.

30   2003) (citing Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d

31   Cir. 2001), cert. denied, 536 U.S. 922 (2002)).   Although the

32   general rule is that a Title VII plaintiff may not pursue an

33   unexhausted claim, we will consider all claims to the extent they



          4
            The Belgrave court cited 29 C.F.R. § 1614.408, but in 1999
     this provision was redesignated as section 1614.407. See Federal
     Sector Equal Employment Opportunity, 64 Fed. Reg. 37,644, 37,659
     (July 12, 1999).

                                      9
1    are "reasonably related" to those that the plaintiff did assert

2    in a timely EEO charge.   Fitzgerald, 251 F.3d at 359.

3              After seeking pre-complaint counseling under 29 C.F.R.

4    § 1614.105, the plaintiff timely filed a formal written

5    administrative "EEO Complaint of Discrimination in the Postal

6    Service" on November 2, 2003.   The administrative complaint form

7    requires the employee to specify the "Type of Discrimination You

8    Are Alleging" and provides the following checkbox options: race,

9    color, religion, national origin, sex, age, retaliation, and

10   disability.   The plaintiff checked race, color, and national

11   origin.   The complaint form also requires the employee to specify

12   the "Date on which alleged act(s) of Discrimination Took Place,"

13   to which the plaintiff answered "9/29/03."   Then, in response to

14   the requirement that he "Explain the specific action(s) or

15   situation(s) that resulted in you alleging that you believe you

16   were discriminated against," the plaintiff provided the following

17   narrative:

18             On Sept 29th my non scheduled day tour
19             beginning from 3.30 to midnight. I was
20             working F S M 100, as told by my M D O,
21             Curtis Parente. At 11.30 pm my supervisor,
22             Cladio [sic] Scirocco told me to get the
23             reject mail 120 from the machine 22. I got
24             an empty postcon from the F S M 1000 and was
25             heading to get the mail. On the aisle I saw
26             Mr. Ron Saco [sic] standing near by the Clock
27             E 12, he yelled at me from there "Joe where
28             you going". I responded that I was going to
29             pick up the reject mail 120. He then shouted
30             "go to 117 otherwise punch out and go home".
31             Soon he rushed to me like a football player,
32             hit my chest and shoulder with his full body
33             power. I fell onto the yellow rails, I tried
34             to hold on to the rails not to fall down. He

                                     10
 1             squeezed me with one hand while holding me
 2             tightly with his other arm. He continued
 3             this for almost three to five minutes,
 4             stating that he will never let me go to
 5             Hartford. His spit came on to my face
 6             (because he was too close to my face). His
 7             hand poked my left eye and tears were rolling
 8             down from my eyes, meanwhile my supervisor
 9             heard the yelling and came to the site, he
10             then called the M D O, Curtis Parente[.]
11             M D O Curtis Parente came to the spot with
12             Don Kulak. Then the M D O assured me that he
13             will take care of the matter and he asked me
14             to continue to work. Then I filed a
15             grievance with the union office.
16             I had two witnesses
17             1) Claudio Scerocco [sic] 204b
18             2) Sherri Sharrington Clerk

19   Joseph Mathirampuzha, EEO Complaint of Discrimination in the

20   Postal Service 2, Nov. 2, 2003.

21             The administrative complaint, in other words, alleged a

22   single act of discrimination: Sacco's aggressive behavior toward

23   the plaintiff on September 29, 2003.   Nowhere did the plaintiff

24   assert or imply a retaliatory motive for Sacco's conduct, nor did

25   he indicate that he had been verbally harassed in the past,

26   denied lunch breaks and assistance in performing his work duties,

27   or otherwise subjected to a hostile work environment.5

28             Nevertheless, the plaintiff argues on appeal that his

29   retaliation and hostile work environment claims meet Title VII's

30   exhaustion requirements because they are "reasonably related" to

31   the allegations in his administrative complaint.   We disagree.



          5
            The documentation the plaintiff submitted during the pre-
     complaint counseling process was likewise devoid of any
     indication that he was alleging retaliation or a hostile work
     environment.

                                       11
1              The exhaustion requirement is relaxed under the

2    "reasonably related" doctrine if, inter alia, "the conduct

3    complained of would fall within the scope of the EEOC

4    investigation which can reasonably be expected to grow out of the

5    charge of discrimination."   Terry, 336 F.3d at 151 (citation and

6    internal quotation marks omitted); see also Deravin v. Kerik, 335

7    F.3d 195, 200-01 (2d Cir. 2003); Fitzgerald, 251 F.3d at 359-60.

8    But we do not think that this recognized principle of "loose

9    pleading," Deravin, 335 F.3d at 201 (citation and internal

10   quotation marks omitted), can be stretched to bridge the gap

11   between the allegations asserted in the plaintiff's EEO complaint

12   and the claims he raises in this civil action.   We have held that

13   an EEOC investigation following "[a] complaint of retaliation

14   could reasonably be expected to inquire into other instances of

15   alleged retaliation by the same actor."   Jute v. Hamilton

16   Sundstrand Corp., 420 F.3d 166, 178 (2d Cir. 2005) (citation,

17   internal quotation marks, and brackets omitted).    But in this

18   case, the plaintiff's EEO complaint did not mention Sacco's

19   previous behavior or his own previous complaints.    A claim of

20   unlawful retaliation was neither stated nor implied.    We do not

21   think that the plaintiff's allegation of a single incident of

22   aggression by Sacco could reasonably be expected to blossom into

23   an investigation covering allegations of unrelated misconduct by

24   Sacco dating back several years.




                                     12
1               We reach this conclusion bearing in mind that the

2    "reasonably related" inquiry requires a fact-intensive analysis.

3    "In determining whether claims are reasonably related, the focus

4    should be on the factual allegations made in the [EEO] charge

5    itself, describing the discriminatory conduct about which a

6    plaintiff is grieving."   Deravin, 335 F.3d at 201 (citation and

7    internal quotation marks omitted).    "[I]t is the substance of the

8    charge and not its label that controls."   Id. (quoting Alonzo v.

9    Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 458 (S.D.N.Y.

10   1998)).   "The central question is whether the complaint filed

11   with the [EEO] gave th[e] agency adequate notice to investigate

12   discrimination on both bases."   Williams v. New York City Hous.

13   Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam) (citations and

14   internal quotation marks omitted).6

15              We frequently invoke the "reasonably related" doctrine

16   when the factual allegations made in the administrative complaint

17   can be fairly read to encompass the claims ultimately pleaded in

18   a civil action or to have placed the employer on notice that such

19   claims might be raised.   For example, in Deravin, we concluded



          6
            We have said that the "reasonably related" doctrine "is
     based on the recognition that EEOC charges frequently are filled
     out by employees without the benefit of counsel and that their
     primary purpose is to alert the EEOC to the discrimination that a
     plaintiff claims he is suffering." Deravin, 335 F.3d at 201
     (citation, internal quotation marks, and brackets omitted); cf.
     Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147, 1160 (2008)
     ("Documents filed by an employee with the EEOC should be
     construed, to the extent consistent with permissible rules of
     interpretation, to protect the employee's rights and statutory
     remedies.").

                                      13
1    that the plaintiff's race discrimination claim was reasonably

2    related to his EEOC charge of national-origin discrimination

3    because, "read liberally, allegations by an African-American

4    employee that employees of Irish descent are receiving

5    preferential treatment implicitly suggests some form of potential

6    racial discrimination in addition to an illegitimate preference

7    premised on national origin."   Deravin, 335 F.3d at 202.

8    Similarly, in Williams, we decided that an EEOC charge alleging

9    retaliation was "reasonably related" to a later-articulated claim

10   of sex discrimination because the detailed narrative of the EEOC

11   charge unmistakably referred to sexual harassment:   "[B]ecause

12   the factual underpinnings of a gender discrimination claim were

13   presented in the complaint made to the EEOC, it was error to

14   dismiss [plaintiff's] claim for failure to exhaust her

15   administrative remedies."   Williams, 458 F.3d at 71.    Here, by

16   contrast, the plaintiff's EEO filing did not give the Postal

17   Service "adequate notice," id. at 70 (citation and internal

18   quotation marks omitted), nor did it contain the "factual

19   underpinnings," id. at 71, of a hostile work environment or

20   retaliation claim.

21             In a not unrelated context, the Supreme Court has

22   described hostile work environment claims as follows:

23             Hostile environment claims are different in
24             kind from discrete acts. Their very nature
25             involves repeated conduct. The "unlawful
26             employment practice" therefore cannot be said
27             to occur on any particular day. It occurs
28             over a series of days or perhaps years and,
29             in direct contrast to discrete acts, a single

                                     14
1              act of harassment may not be actionable on
2              its own. Such claims are based on the
3              cumulative effect of individual acts.

4    Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)

5    (citations omitted).   The plaintiff's administrative complaint

6    contains no reference to repeated conduct or the cumulative

7    effect of individual acts.   To the contrary, his EEO complaint

8    recounts nothing more than a single act of physical and verbal

9    abuse.   Although this adequately exhausts a discrimination claim

10   based on this single act of abuse, we conclude that the

11   plaintiff's claim that Sacco subjected him to a hostile work

12   environment by verbally harassing him since 1999 and denying him

13   lunch breaks and assistance with his work was properly dismissed

14   for failure to comply with the exhaustion requirement.

15             As for the plaintiff's retaliation claim, the plaintiff

16   asserts in the present action that Sacco's conduct on September

17   29, 2003, was in retaliation for having previously complained

18   about Sacco's "unprofessional and discriminatory conduct."     Am.

19   Compl. ¶ 12.   This claim does not fit within the "reasonably

20   related" exception to the exhaustion doctrine either.    The

21   plaintiff's EEO complaint contains no factual allegations

22   sufficient to alert the EEO to the possibility that Sacco's

23   assault was the product of a retaliatory motive.7


          7
            This is not a case in which the plaintiff alleges
     retaliation for filing the very EEO charge that served to exhaust
     the plaintiff's other claims. See Terry, 336 F.3d at 151
     (recognizing that the exhaustion requirement is relaxed in such
     cases). The plaintiff did not file an EEO complaint until after
                                                        (continued...)

                                     15
1    B.   Prima Facie Case

2                At the summary-judgment stage, properly exhausted Title

3    VII claims are ordinarily analyzed under the familiar burden-

4    shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

5    792 (1973), and its progeny.     See St. Mary's Honor Center v.

6    Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep't of Cmty. Affairs

7    v. Burdine, 450 U.S. 248, 252-53 (1981).     At the first stage of

8    the McDonnell Douglas analysis, the plaintiff bears the burden of

9    establishing a prima facie case of discrimination by showing

10   that: "1) he belonged to a protected class; 2) he was qualified

11   for the position; 3) he suffered an adverse employment action;

12   and 4) the adverse employment action occurred under circumstances

13   giving rise to an inference of discriminatory intent."     Terry,

14   336 F.3d at 138.     The plaintiff's burden of proof at the prima

15   facie stage "is not onerous."     Burdine, 450 U.S. at 253.

16               Here, it is undisputed that the plaintiff belongs to a

17   protected class and was qualified for his position at the postal

18   facility.    The first two prongs of the McDonnell Douglas inquiry

19   are therefore satisfied, and we turn to the remaining two.

20               1.   Sacco's Aggressive Conduct Toward Plaintiff.

21               We agree with the district court that the plaintiff's

22   "asserted treatment at the hands of Ron Sacco on September 29 --

23   while unprofessional and boorish -- and the initially dismissive


          7
           (...continued)
     his encounter with Sacco on September 29, 2003, so he cannot
     argue (nor does he) that Sacco's conduct was in retaliation for
     filing the EEO complaint.

                                       16
1    attitude of other supervisors when Sacco's behavior was brought

2    to their attention, does not amount to an 'adverse employment

3    action' . . . ."    Mathirampuzha, 2006 WL 2458669, at *7, 2006

4    U.S. Dist. LEXIS 62738, at *22.

5                An adverse employment action is "a materially adverse

6    change in the terms and conditions of employment."    Sanders v.

7    N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)

8    (emphasis added; citation and internal quotation marks omitted).

 9               To be materially adverse, a change in working
10               conditions must be more disruptive than a
11               mere inconvenience or an alteration of job
12               responsibilities. Examples of such a change
13               include termination of employment, a demotion
14               evidenced by a decrease in wage or salary, a
15               less distinguished title, a material loss of
16               benefits, significantly diminished material
17               responsibilities, or other indices unique to
18               a particular situation.

19   Id. (citation, internal quotation marks, and ellipsis omitted).

20   Only in limited circumstances does a single, acute incident of

21   abuse qualify as an adverse employment action.    In the context of

22   hostile work environment claims, we have stated that a single

23   event, if "extraordinarily severe," could alter the conditions of

24   a working environment.    Howley v. Town of Stratford, 217 F.3d

25   141, 153 (2d Cir. 2000) (citation and internal quotation marks

26   omitted).    A "single incident of rape," for example,

27   "'sufficiently alters the conditions of the victim's employment

28   and clearly creates an abusive work environment for purposes of

29   Title VII liability'" for sex-based discrimination.      Ferris v.

30   Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (quoting


                                       17
1    Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995),

2    abrogated on other grounds by Burlington Indus., Inc. v. Ellerth,

3    524 U.S. 742 (1998)), cert. denied, 537 U.S. 824 (2002).    But we

4    require that the incident constitute an "intolerable alteration"

5    of the plaintiff's working conditions, Howley, 217 F.3d at 154,

6    so as to substantially interfere with or impair his ability to do

7    his job, see Mormol v. Costco Wholesale Corp., 364 F.3d 54, 59

8    (2d Cir. 2004).

9              We conclude, in light of that authority, that Sacco's

10   aggressive conduct toward the plaintiff on September 29, 2003,

11   was not an adverse employment action.   After the incident took

12   place, the plaintiff continued to work at the Wallingford plant

13   in the same position, at the same pay, and with the same

14   responsibilities.   Indeed, there is no evidence that the assault

15   brought lasting harm to the plaintiff's ability to do his job.

16   The physical encounter itself, while understandably upsetting,

17   was not so severe as to alter materially the plaintiff's working

18   conditions -- unlike, for example, a rape, see Ferris, 277 F.3d

19   at 136, or an obscene and humiliating verbal tirade that

20   undermines the victim's authority in the workplace, see Howley,

21   217 F.3d at 154.    The Postal Service's response to the incident,

22   moreover, while not immediate, ultimately ameliorated the

23   plaintiff's working conditions, as Sacco was eventually

24   disciplined and transferred to another work assignment for at

25   least one year.    Although a more severe incident of harassment or

26   abuse could constitute an adverse employment action, the brief

                                      18
1    incident in this case, however regrettable, does not meet the

2    "extraordinarily severe" standard.    The plaintiff has therefore

3    failed to establish a prima facie case of employment

4    discrimination based on that event.

5              2.   The Denial of Plaintiff's Requests for a Transfer.

6              The plaintiff's transfer requests were denied several

7    times, but there is no evidence in the record that anyone who was

8    responsible for rejecting those transfer requests harbored a

9    discriminatory motive toward the plaintiff or acted with a

10   discriminatory intent.   The plaintiff therefore has failed to

11   satisfy the fourth part of the McDonnell Douglas test for

12   establishing a prima facie case: that the adverse employment

13   action, if any, "occurred under circumstances giving rise to an

14   inference of discriminatory intent."   Terry, 336 F.3d at 138.8

15               It is true that during the incident of September 29,

16   2003, Sacco threatened the plaintiff with respect to his desire

17   to transfer to Hartford.   But Sacco was not the plaintiff's

18   direct superior, and the plaintiff has pointed to no evidence in

19   the record, nor have we found any, that Sacco had anything to do

20   with whether or not the plaintiff was transferred to Hartford as



          8
           The Postal Service does not argue on appeal that the
     plaintiff failed to exhaust his claim regarding the denial of his
     transfer requests or failed to raise such a claim in his amended
     complaint. We therefore deem those arguments waived and consider
     on the merits whether the plaintiff has established a prima facie
     case of discrimination based on the denial of his transfer
     requests. See Francis v. City of New York, 235 F.3d 763, 766 (2d
     Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 569-70 &
     n.5 (2d Cir. 2000).

                                     19
1    he wished.   The fact that Sacco might have harbored

2    discriminatory views toward the plaintiff is therefore irrelevant

3    to the claim regarding denial of transfer.

4              The district court concluded that the Post Office's

5    rejection of plaintiff's requests for a transfer to the postal

6    facility in Hartford did not amount to an "adverse employment

7    action," Mathirampuzha, 2006 WL 2458669, at *7, 2006 U.S. Dist.

8    LEXIS 62738, at *21-*22, and that the plaintiff therefore failed

9    to meet his burden with respect to the third part of the

10   McDonnell Douglas test.   Terry, 336 F.3d at 138.   There is,

11   indeed, some support for that conclusion in our case law.    See

12   generally Beyer v. County of Nassau, 524 F.3d 160, 164 (2d Cir.

13   2008) ("A denial of a transfer may . . . constitute an adverse

14   employment action, but we require a plaintiff to proffer

15   objective indicia of material disadvantage; subjective, personal

16   disappointment is not enough." (citation, internal quotation

17   marks and brackets omitted)); Williams v. R.H. Donnelley Corp.,

18   368 F.3d 123, 128 (2d Cir. 2004) (concluding that the denial of

19   an employee's request for transfer is not an adverse employment

20   action unless the denial "created a materially significant

21   disadvantage in her working conditions").    Because we conclude

22   that Sacco had no responsibility for the transfer, and that the

23   evidence does not support an inference that the other defendant,

24   or his agents who were responsible for declining the plaintiff's

25   requests for a transfer, acted in a way that could reasonably

26   give rise to an inference of discriminatory intent, we do not

                                     20
1    reach the question of whether the failure to transfer the

2    plaintiff to Hartford was or was not an adverse employment

3    action.

4                III.   Plaintiff's Federal Tort Claims

5    A.   Framework for Analysis

6                The FTCA waives the sovereign immunity of the United

7    States for certain torts committed by federal employees,

8    including Postal Service employees, within the scope of their

9    employment.    Dolan v. U.S. Postal Serv., 546 U.S. 481, 484-85

10   (2006); see 28 U.S.C. § 2674; 39 U.S.C. § 409(c).    When the tort

11   victim is also a federal employee, however, work-related injuries

12   are compensable only under the FECA.9    See 5 U.S.C. § 8116(c);10

13   Votteler v. United States, 904 F.2d 128, 130 (2d Cir.) ("FECA is



          9
            Postal employees are federal employees for FECA purposes.
     39 U.S.C. § 1005(c).
          10
               Section 8116(c) provides, in pertinent part:

                 The liability of the United States or an
                 instrumentality thereof under this subchapter
                 or any extension thereof with respect to the
                 injury or death of an employee is exclusive
                 and instead of all other liability of the
                 United States or the instrumentality to the
                 employee, his legal representative, spouse,
                 dependents, next of kin, and any other person
                 otherwise entitled to recover damages from
                 the United States or the instrumentality
                 because of the injury or death in a direct
                 judicial proceeding, in a civil action, or in
                 admiralty, or by an administrative or
                 judicial proceeding under a workmen's
                 compensation statute or under a Federal tort
                 liability statute.

     5 U.S.C. § 8116(c) (emphasis added).

                                       21
1    the exclusive remedy for work-related injuries sustained by

2    federal employees." (citation omitted)), cert. denied, 498 U.S.

3    1000 (1990).    As the Supreme Court has explained:

 4               FECA's exclusive liability provision . . .
 5               was designed to protect the Government from
 6               suits under statutes, such as the Federal
 7               Tort Claims Act, that had been enacted to
 8               waive the Government's sovereign immunity.
 9               In enacting this provision, Congress adopted
10               the principal compromise –- the "quid pro
11               quo" –- commonly found in workers'
12               compensation legislation: employees are
13               guaranteed the right to receive immediate,
14               fixed benefits, regardless of fault and
15               without need for litigation, but in return
16               they lose the right to sue the Government.

17   Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94

18   (1983).

19               Congress has vested the Secretary of Labor or her

20   delegate with exclusive authority to "administer[] and decide all

21   questions arising under" the FECA, 5 U.S.C. § 8145, and federal

22   courts are barred from exercising judicial review over such

23   decisions, id. § 8128(b).11    Because the FECA is an "exclusive"


          11
               Section 8128(b) provides:

                 The action of the Secretary or his designee
                 in allowing or denying a payment under this
                 subchapter is --

                      (1) final and conclusive for all
                      purposes and with respect to all
                      questions of law and fact; and

                      (2) not subject to review by another
                      official of the United States or by a
                      court by mandamus or otherwise.

     5 U.S.C. § 8128(b).    But cf. United States v. Sforza, 326 F.3d
                                                          (continued...)

                                       22
1    remedy, id. § 8116(c), it deprives federal courts of subject-

2    matter jurisdiction to adjudicate claims brought under the FTCA

3    for workplace injuries that are covered by the FECA.     See Granade

4    v. United States, 356 F.2d 837, 840 (2d Cir. 1966), cert. denied,

5    385 U.S. 1012 (1967).

6                 The plaintiff acknowledges that if a claim is covered

7    by the FECA, he cannot recover under the FTCA.     But he argues

8    that he has asserted a claim for damages for emotional distress

9    as well as for physical injuries resulting from his confrontation

10   with Sacco and that the FECA does not "cover" damages for

11   emotional distress.     He contends, therefore, that his FTCA claim

12   is not precluded.     The plaintiff's argument raises a question of

13   first impression for us:     Who decides whether a claim is within

14   the scope of FECA coverage: the Secretary of Labor, or the

15   federal district court asked to adjudicate the claim under the

16   FTCA?

17                We agree with the majority of circuits to have

18   addressed this question that where there is a substantial

19   question of FECA coverage –- indeed, unless it is certain that

20   the FECA does not cover the type of claim at issue –– the

21   district court may not entertain the FTCA claim.     See Gill v.

22   United States, 471 F.3d 204, 206 (1st Cir. 2006), cert. denied,



             11
           (...continued)
     107, 111-15 (2d Cir. 2003) (holding that section 8128(b) does not
     deprive courts of jurisdiction over government's False Claims Act
     suit seeking recoupment of fraudulently obtained disability
     benefits).

                                       23
1    128 S. Ct. 45 (2007); Tippetts v. United States, 308 F.3d 1091,

2    1094 (10th Cir. 2002); Noble v. United States, 216 F.3d 1229,

3    1235 (11th Cir. 2000); Bennett v. Barnett, 210 F.3d 272, 277 (5th

4    Cir.), cert. denied, 531 U.S. 875 (2000); McDaniel v. United

5    States, 970 F.2d 194, 198 (6th Cir. 1992) (per curiam); DiPippa

6    v. United States, 687 F.2d 14, 16 (3d Cir. 1982); Wallace v.

7    United States, 669 F.2d 947, 951 (4th Cir. 1982); Daniels-Lumley

8    v. United States, 306 F.2d 769, 771 (D.C. Cir. 1962).    If there

9    is a substantial question of FECA coverage, only the Secretary of

10   Labor or her delegate may decide whether the FECA applies.    If

11   the Secretary determines that the plaintiff's claim is

12   fundamentally outside the scope of the FECA, then the claim may

13   proceed under the FTCA in district court.12   Conversely, "the

14   courts have no jurisdiction over FTCA claims where the Secretary

15   determines that FECA applies."   Sw. Marine, Inc. v. Gizoni, 502

16   U.S. 81, 90 (1991).

17             Only the Ninth Circuit has taken the position the

18   plaintiff would have us adopt here -- that a federal court



          12
            The Secretary must determine that the claim categorically
     falls outside the scope of the FECA's coverage -- in other words,
     that the claim is not the type of claim covered by the FECA. The
     plaintiff may not proceed under the FTCA if the claim fails for
     lack of proof. See Bennett, 210 F.3d at 277. "So long as the
     injury is of the type intended to be covered by FECA, the fact
     that no actual compensation was awarded is irrelevant."
     McDaniel, 970 F.2d at 197. To the extent the plaintiff argues
     that he should be able to proceed under the FTCA because the
     FECA, though it may cover his claim, does not compensate for pain
     and suffering, this argument is without merit. See Noble, 216
     F.3d at 1234; Votteler, 904 F.2d at 130; Balancio v. United
     States, 267 F.2d 135, 137-38 (2d Cir. 1959).

                                      24
1    decides the threshold question whether the type of injury alleged

2    falls within the scope of FECA coverage, whereas the Secretary of

3    Labor decides the unreviewable question whether the claimant is

4    to receive compensation.   See Moe v. United States, 326 F.3d

5    1065, 1068 (9th Cir.), cert. denied, 540 U.S. 877 (2003);

6    Figueroa v. United States, 7 F.3d 1405, 1407-08 (9th Cir. 1993),

7    cert. denied, 511 U.S. 1030 (1994); Sheehan v. United States, 896

8    F.2d 1168, 1173-74 (9th Cir.), amended, 917 F.2d 424 (9th Cir.

9    1990).   That court has reasoned that the FECA's "[s]cope . . . is

10   a question that must be answered by the federal courts, because

11   it is one of jurisdiction."   Moe, 326 F.3d 1068.

12             We see little basis for that view.   Congress may limit

13   its waiver of sovereign immunity by vesting exclusive

14   jurisdiction over certain claims against the government in

15   administrative agencies.   See N. Pipeline Constr. Co. v. Marathon

16   Pipe Line Co., 458 U.S. 50, 67-70 & n.18 (1982) (plurality)

17   (discussing the "public rights" doctrine).   And we defer to

18   agencies' reasonable interpretations of ambiguous language in the

19   statutes they administer, including the scope of those statutes

20   and the types of claims they cover.   See Chevron, U.S.A., Inc. v.

21   Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) ("We

22   have long recognized that considerable weight should be accorded

23   to an executive department's construction of a statutory scheme

24   it is entrusted to administer, and the principle of deference to

25   administrative interpretations." (footnote omitted)); see also

26   Miss. Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S.

                                     25
1   354, 381 (1988) (Scalia, J., concurring) ("[I]t is settled law

2   that the rule of deference applies even to an agency's

3   interpretation of its own statutory authority or jurisdiction."

4   (collecting cases)).   We therefore conclude that the Secretary of

5   Labor may determine what types of claims fall within the scope of

6   FECA coverage.13   And because liability under the FECA is

7   exclusive, our subject-matter jurisdiction ends where FECA

8   coverage begins.

9             That said, we doubt whether, as some Courts of Appeals



         13
           Although we recognize that the Secretary's decision
    regarding FECA coverage -- unlike most administrative decisions
    to which courts owe Chevron deference -- seems to be
    unreviewable, see 5 U.S.C. § 8128(b), we do not think that
    difference is dispositive. First, "Congress is not barred from
    acting pursuant to its powers under Article I to vest
    decisionmaking authority in . . . [administrative agencies] with
    limited or no review by Article III courts." Thomas v. Union
    Carbide Agric. Prods. Co., 473 U.S. 568, 583 (1985); see Blanc v.
    United States, 244 F.2d 708, 710 (2d Cir.) (per curiam) (applying
    that principle to FECA claims), cert. denied, 355 U.S. 874
    (1957). Second, in an action that begins as a FTCA claim in
    federal court, the Secretary's discretion in construing the scope
    of the FECA is cabined before, rather than after, the final
    agency decision: Courts need not refer FTCA claims to the
    Secretary of Labor unless there is a "substantial question" of
    FECA coverage.

         We note, too, that several appellate courts have held that
    "an implicit and narrow exception to the bar on judicial review
    exists for claims that the agency exceeded the scope of its
    delegated authority or violated a clear statutory mandate."
    Hanauer v. Reich, 82 F.3d 1304, 1307 (4th Cir. 1996); see also
    Brumley v. U.S. Dep't of Labor, 28 F.3d 746, 747 (8th Cir. 1994)
    (per curiam), cert. denied, 513 U.S. 1082 (1995); Woodruff v.
    U.S. Dep't of Labor, 954 F.2d 634, 639 (11th Cir. 1992) (per
    curiam); Staacke v. U.S. Sec'y of Labor, 841 F.2d 278, 281 (9th
    Cir. 1988). We have previously declined to decide whether we
    would recognize that exception, Senerchia v. United States, 235
    F.3d 129, 131-32 (2d Cir. 2000), and we have no need to address
    that issue today.

                                     26
1    have said, the mere existence of a substantial question of FECA

2    coverage deprives us of subject-matter jurisdiction over FTCA

3    claims.   See Gill, 471 F.3d at 207-08; Wright v. United States,

4    717 F.2d 254, 257 (6th Cir. 1983).    FECA liability is exclusive,

5    5 U.S.C. § 8116(c), but the FTCA is an unambiguous waiver of

6    sovereign immunity where the FECA does not apply.14   Therefore,

7    although district courts must permit the Secretary of Labor to

8    determine whether the FECA applies whenever an FTCA claim raises

9    a substantial question of FECA coverage, the courts do not

10   immediately lose subject-matter jurisdiction over the case.    For

11   if the Secretary determines that the type of claim involved does

12   not implicate the FECA, then the FTCA claim may proceed.   See

13   Noble, 216 F.3d at 1235; White v. United States, 143 F.3d 232,

14   239 (5th Cir. 1998); McDaniel, 970 F.2d at 198; DiPippa, 687 F.2d

15   at 20.    "[T]he courts have no jurisdiction over FTCA claims where

16   the Secretary determines that FECA applies."   Sw. Marine, 502

17   U.S. at 90 (emphasis added).   Even in situations where the

18   district court deems it highly unlikely that the claim falls

19   outside the scope of the FECA, subject-matter jurisdiction over

20   the case remains with the court until the Secretary has made that

21   determination.

22              Our conclusion in this regard is informed by the

23   Supreme Court's discussion in Southwest Marine of the




          14
            Assuming, of course, the FTCA's other enumerated
     exceptions, see 28 U.S.C. § 2680, also do not apply.

                                      27
1    relationship between FECA and the FTCA in the context of the so-

2    called "primary jurisdiction" doctrine.   Id.

 3             The doctrine of primary jurisdiction, like
 4             the rule requiring exhaustion of
 5             administrative remedies, is concerned with
 6             promoting proper relationships between the
 7             courts and administrative agencies charged
 8             with particular regulatory duties.
 9             "Exhaustion" applies where a claim is
10             cognizable in the first instance by an
11             administrative agency alone; judicial
12             interference is withheld until the
13             administrative process has run its course.
14             "Primary jurisdiction," on the other hand,
15             applies where a claim is originally
16             cognizable in the courts, and comes into play
17             whenever enforcement of the claim requires
18             the resolution of issues which, under a
19             regulatory scheme, have been placed within
20             the special competence of an administrative
21             body; in such a case the judicial process is
22             suspended pending referral of such issues to
23             the administrative body for its views.

24   United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64 (1956); see

25   also Reiter v. Cooper, 507 U.S. 258, 268 (1993) ("Referral of the

26   issue to the administrative agency does not deprive the court of

27   jurisdiction . . . .").   We think the doctrine of primary

28   jurisdiction establishes a helpful framework for the treatment of

29   FTCA claims that raise a substantial question of FECA coverage.

30   B.   Plaintiff's FTCA Claims

31             With these principles in mind, we turn to the district

32   court's treatment of the plaintiff's claims under the FTCA.   The

33   plaintiff argues that his FTCA claim for emotional distress

34   should go forward because the FECA does not cover such claims.

35   But unless it is clear that the FECA does not cover the type of

36   claim at issue, there is a substantial question of FECA coverage.

                                     28
1    See, e.g., DiPippa, 687 F.2d at 16.     It is not difficult to find

2    examples of FECA coverage for claims of emotional distress,

3    psychological injuries, and the like.     See, e.g., Spinelli v.

4    Goss, 446 F.3d 159, 161 (D.C. Cir. 2006); Tippetts, 308 F.3d at

5    1094-95; Swafford v. United States, 998 F.2d 837, 838 (10th Cir.

6    1993); McDaniel, 970 F.2d at 197; Doe v. United States, 914 F.

7    Supp. 945, 950 (W.D.N.Y. 1996).    The district court therefore

8    determined that the plaintiff's emotional-distress claim raised a

9    substantial question of FECA coverage, Mathirampuzha, 2006 WL

10   2458669, at *8, 2006 U.S. Dist. LEXIS 62738, at *26, and we

11   agree.

12             We conclude that the district court erred, however, in

13   dismissing the plaintiff's FTCA emotional-distress claim for lack

14   of jurisdiction.    The district court did not lose jurisdiction,

15   because the event that would have divested the court of

16   jurisdiction -- a determination by the Secretary of Labor that

17   the plaintiff's emotional-distress claim was covered by the FECA

18   -- did not occur.   The proper course was therefore to stay the

19   proceedings, hold the claim in abeyance, or otherwise maintain

20   the case on the court's inactive docket so that the plaintiff

21   could file a FECA claim and await a determination by the

22   Secretary regarding FECA coverage.     See Tippetts, 308 F.3d at

23   1095; Noble, 216 F.3d at 1235; White, 143 F.3d at 239; McDaniel,

24   970 F.2d at 197-98; DiPippa, 687 F.2d at 20; Doe, 914 F. Supp. at

25   950.



                                       29
1               In some cases involving the primary jurisdiction

2    doctrine, the district court has discretion to dismiss the case

3    without prejudice while the relevant issue is referred to and

4    considered by the administrative agency.   See Reiter, 507 U.S. at

5    268-69.   But dismissal without prejudice is permitted only "if

6    the parties would not be unfairly disadvantaged."    Id. at 268.

7    We think there is a significant danger of unfair disadvantage

8    here inasmuch as the plaintiff's claim is subject to a statute of

9    limitations.   See Carnation Co. v. Pac. Westbound Conference, 383

10   U.S. 213, 223 (1966) (contrasting suits for injunctive relief,

11   which "could easily be reinstituted" at any time, with "damage

12   action[s] for past conduct," which "are likely to be [time-

13   ]barred by the time the [agency] acts").   By the time the

14   Secretary of Labor determines that a claim is not covered under

15   the FECA, it may be too late to reinstitute an action for damages

16   under the FTCA.15   See White, 143 F.3d at 239.   "To avoid statute

17   of limitations problems, the district court should stay

18   proceedings in the action until the Secretary resolves the

19   question of FECA coverage."   DiPippa, 687 F.2d at 20.

20              At oral argument, we were told that the plaintiff had

21   filed a FECA claim during the pendency of this appeal, that the

22   claim was denied as untimely, and that the denial of the claim is

23   on appeal within the administrative agency.   We have also

24   learned, based on the parties' supplements to the record, that


          15
            The statute of limitations under the FTCA is two years.
     28 U.S.C. § 2401(b).

                                      30
1    the administrative decision denying the plaintiff's FECA claim

2    did not comment on whether the claim was otherwise covered under

3    the statute.   Should the Secretary's final decision deny the

4    plaintiff's FECA claim on grounds of untimeliness without comment

5    regarding whether the claim is otherwise covered by the FECA,

6    then dismissal without prejudice would be appropriate and would

7    result in no "unfair disadvantage" to the plaintiff.   The burden

8    of demonstrating subject-matter jurisdiction lies with the party

9    asserting it, see Hamm v. United States, 483 F.3d 135, 137 (2d

10   Cir. 2007), as does the burden of filing a timely FECA claim, see

11   ILGWU Nat'l Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d

12   879, 887 (2d Cir. 1988) ("The failure to seek . . . relief on a

13   timely basis may, in some instances, lead to a harsh result, but

14   the harshness of the default is largely a self-inflicted wound."

15   (citation and internal quotation marks omitted)).   If the

16   Secretary decides only that the plaintiff's FECA claim is

17   untimely, then the plaintiff will have failed to establish that

18   his claim is not covered by the FECA.

19             If, however, the Secretary's final decision dismisses

20   the plaintiff's FECA claim on the ground that, even if it had

21   been timely filed and its allegations fully proven, the plaintiff

22   could not recover under the FECA because his claim is of a type

23   not covered by that statute, then the plaintiff should be able to

24   pursue his FTCA claim in the district court.   We do not, of

25   course, mean to suggest that there is merit to the plaintiff's

26   FTCA claim, nor that we anticipate that the Secretary will decide

                                     31
1    the plaintiff's FECA claim on any basis other than its

2    timeliness.   We conclude only that the question of coverage under

3    the FECA, which may well preclude relief under the FTCA, should

4    be decided by the Secretary first.

5               The portion of the district court's judgment dismissing

6    the plaintiff's FTCA emotional-distress claim is therefore

7    vacated.   On remand, the district court should reinstate the FTCA

8    claim and stay proceedings pending a final determination by the

9    Secretary of Labor resolving the plaintiff's FECA claim.

10                               CONCLUSION

11              For the foregoing reasons, the judgment of the district

12   court is affirmed in part and vacated in part.   This cause is

13   remanded for further proceedings consistent with this opinion.




                                     32
