Opinion
EP-99-CA-164-DB.
June, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendants' "Motion to Dismiss or in the Alternative for Summary Judgment," filed in the above-captioned cause on December 27, 1999. Plaintiff Maxine Griego filed a Response on January 21, 2000. By letter brief, Defendants filed a Reply to Plaintiff's Response on January 27, 2000. After due consideration, the Court is of the opinion that Defendants' Motion to Dismiss should be granted for the reasons that follow.
BACKGROUND
Plaintiff Maxine Griego commenced this lawsuit by filing a Complaint in this Court on May 19, 1999, alleging two claims for relief pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, 2671 et seq.: (1) assault and (2) negligent hiring, training, supervision and retention (hereinafter "negligent hiring"). Also, therein, Plaintiff sets forth the following "Nature of Action": "This action is filed under the [FTCA], to make whole and compensate Plaintiff. . . . The Defendant, through its agent . . . physically assaulted Griego. In addition, as set forth in detail herein, the Defendant was negligent in its hiring, training, supervision and retention of [its agent]."
Although Plaintiff labels this cause of action "assault," Plaintiff alleges facts which clearly amount to a cause of action for battery rather than assault. The tort of assault merely places a person in apprehension of harmful or offensive bodily contact, whereas the tort of battery occurs when such offensive contact actually results. See generally, RESTATEMENT (SECOND) OF TORTS § 18 (battery); id. at § 21 (assault). Plaintiff does not allege that she was placed in any such apprehension, but does allege offensive contact. As discussed below, the distinction is not critical to the instant Motion to Dismiss because, as addressed below, both assault and battery are intentional torts. See id.; see also id. at § 8A (defining intent). In any event, for simplicity, the Court refers to Plaintiff's first claim as one for "assault," based on her label.
Plaintiff alleges that she worked for the United States Bureau of Prisons' ("BOP") Federal Correctional Institute La Tuna ("FCI La Tuna") since July 1979 as that facility's "Volunteer Coordinator." The BOP also employed Father Anthony Plathe ("Plathe"), a Catholic chaplain, at its nearby Federal Prison Camp in El Paso, Texas.
Plaintiff alleges that in June 1996, Plathe appeared at Plaintiff's office at FCI La Tuna and reached out to Plaintiff with both hands extended, as if to hug Plaintiff. Instead of hugging Plaintiff, however, Plathe allegedly "cupped both of his hands and fondled both sides of [Plaintiff's] breasts in a deliberate manner." Some six months later, in January 1997, Plaintiff allegedly reported the incident to her supervisor, who allegedly told Plaintiff that Plathe would not be permitted to return to FCI La Tuna. Three months after that, Plaintiff alleges, Plathe was allowed back inside FCI La Tuna. From these events, Plaintiff does not claim any physical injury; rather, she claims that she suffered severe mental anguish and emotional distress.
The instant Motion to Dismiss followed.
STANDARD ON MOTION TO DISMISS
Federal Rule of Civil Procedure 12 allows a party to move to dismiss an action for lack of subject matter jurisdiction (subsection (b)(1)) and for "failure to state a claim upon which relief can be granted" (subsection (b)(6)). Under Rule 12(b)(1), which the Court must consider before any other challenge, see Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994), a court must dismiss a cause for lack of subject matter jurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks removed) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). Further, the Court applies the same familiar standard used in ruling on a motion under Rule 12(b)(6).
Under Rule 12(b)(6), the Court must decide whether the facts alleged, if true, would entitle the plaintiff to some legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.Ed.2d 80 (1957). In short, the Court should not dismiss a claim pursuant to Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id. The Court must limit its inquiry to facts stated in the complaint and the documents either attached to or incorporated in the complaint. See Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996). Further, the Court must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn from them, see Kaiser Aluminum Chem. Sales, Inc., v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), and must review those facts in a light most favorable to the plaintiff. See Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995); Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d 591, 593 (5th Cir. 1991). The Court also may "consider matters of which [it] may take judicial notice," Lovelace, 78 F.3d at 1017-18, and matters of public record. See 5A Charles A. Wright Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990).
DISCUSSION
Defendants move for dismissal on various grounds pursuant to Rule 12 of the Federal Rules of Civil Procedure. Specifically, all Defendants except the United States move to dismiss on the ground that the United States is the only proper party in a FTCA case. See, e.g., Galvin v. Occupational Safety Health Admin., 860 F.2d 181, 183 (5th Cir. 1988); see also Rodriguez v. Sarabyn, 129 F.3d 760, 764 (5th Cir. 1997) (noting that once individual defendants are shown to be United States employees, the "United States is automatically substituted for the defendants, who are then dismissed from the action," and "once the substitution occurs, the FTCA applies, and some claims may be dismissed for lack of subject-matter jurisdiction because the United States has not waived its sovereign immunity"). Plaintiff concedes this point. Accordingly, the Court is of the opinion that Plaintiff's claims against all defendants except the United States should be dismissed.
The United States further moves for dismissal based on the following grounds: (1) that Plaintiff's exclusive remedy is the Federal Employee's Compensation Act ("FECA"), 5 U.S.C. § 8102 et seq.; (2) that Plaintiff's claims are preempted by Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq. ("Title VII"). Finally, pursuant to Rule 12(b)(1), the United States moves to dismiss for lack of subject matter jurisdiction because the FTCA's "intentional torts exception" applies. See 28 U.S.C. § 2680(h). Although the United States also moves for summary judgment alternatively, the Court does not consider that motion because "as a general rule, whenever the United States has not waived its sovereign immunity, the district court should dismiss the complaint for want of subject matter jurisdiction rather than dismissing by granting a motion for summary judgment." Broussard v. United States, 989 F.2d 171, 177 (5th Cir. 1993).
A. FECA Exclusivity
The United States insists that Plaintiff's claims come within FECA, which is the exclusive remedy for "a federal employee's personal injuries `sustained while in the performance of [her] duty.'" White v. United States, 143 F.3d 232, 234 (5th Cir. 1998) (quoting 5 U.S.C. § 8102(a) (defining compensation)); see also 5 U.S.C. § 8116(c) (establishing exclusivity). The United States contends that because Plaintiff allegedly was assaulted by another government employee on government property during working hours, Plaintiff's injuries, if any, fall within the FECA compensation scheme.
This Court cannot determine whether such an injury is actually compensable under FECA; rather, the Court's only inquiry is to determine, as a matter of law, whether there is a substantial question of FECA coverage. See White, 143 F.3d at 234. If a claim clearly is compensable under FECA or there is a substantial question about whether coverage extends to the alleged injury, then the Court has no subject matter jurisdiction and must allow the Secretary of Labor to determine whether to grant or deny coverage. See id. On the other hand, if there is no substantial question of compensability, and the alleged injury clearly is not covered under FECA, only then can this Court hear the FTCA claim of a federal employee. See id.
Here, the United States fails to present sufficient information for the Court to determine whether there is any substantial question of FECA coverage. Although several courts have found that emotional injuries, such as those Plaintiff alleges, are compensable under FECA, see, e.g., Green v. Hill, 954 F.2d 694, 697 n. 10 (11th Cir. 1992); Eure v. United States Postal Svc., 711 F. Supp. 1365, 1372-74 (S.D.Miss. 1989); Burke v. United States, 644 F. Supp. 566, 568-69 (E.D.La. 1986), other courts have found that such injuries are not. See Nichols v. Frank, 42 F.3d 503, 515 (9th Cir. 1994); DeFord v. Secretary of Labor, 700 F.2d 281, 290 (6th Cir. 1983). Accordingly, the Court declines to dismiss Plaintiff's cause based on FECA exclusivity.
B. Title VII Preemption
Next, the United States contends that Plaintiff's claims are preempted by Title VII because they relate to sexual harassment in the workplace by another BOP employee. "Title VII provides the `exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.'" Pfau v. Reed, 125 F.3d 927, 933 (5th Cir. 1997), vacated on other grounds, 525 U.S. 801, 119 S.Ct. 32, 142 L.Ed.2d 24 (1998), reinstated in pertinent part, 167 F.3d 228, 229 (5th Cir. 1999) (quoting Brown v. General Servs. Admin., 425 U.S. 820, 829, 96 S. Ct. 1961, 1966, 48 L.Ed.2d 402 (1976)). Thus, "[w]hen the same set of facts supports a Title VII claim and a non-Title VII claim against a federal employer, Title VII preempts the non-Title VII claim." Id.
Here, Plaintiff alleges that the workplace sexual advance by another employee is not preempted because "in addition to her sexual harassment claim, the facts she has pled support claims for a variety of other causes of action," which "arise from and are supported by separate facts than her discrimination and harassment claims." To that end, Plaintiff cites Brock v. United States, 64 F.3d 1421, 1423-25 (9th Cir. 1995), for the proposition that a sexual assault in the workplace constitutes both sexual harassment and a separate claim for assault. Unfortunately for Plaintiff, the United States points out that the Fifth Circuit takes the complete opposite position. Indeed, rejecting the Ninth Circuit's approach, the Pfau court stated:
We decline to adopt the position taken by the Ninth Circuit in Brock because it is inconsistent with the jurisprudence of this circuit. So long as the factual predicate of a claimant's non-Title VII claims is the same as the factual predicate for the claimant's Title VII claims against a federal agency, we are bound to conclude that Title VII preempts the non-Title VII claims.
Pfau, 64 F.3d at 933-34 n. 2 (citations omitted).
However appealing Title VII preemption may be, Defendant's argument misses the mark here because Plaintiff does not allege violations of Title VII. Constrained to the "four corners" of Plaintiff's Complaint herein, the Court declines to dismiss Plaintiff's claims on the basis of Title VII preemption.
C. Intentional Tort Exception
Finally, the United States contends that this Court lacks jurisdiction over Plaintiff's claims because an exception to FTCA jurisdiction applies. Here, the Court agrees.
"As the sovereign, the United States is immune from suit unless, and only to the extent that, it has consented to be sued." Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). As a limited waiver of immunity, the FTCA and its exceptions should be "narrowly construed in favor of the United States." Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999) (citing, e.g., Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996); Lehman v. Nakshian, 453 U.S. 156, 160-61, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981)) (emphasis added); see also Truman, 26 F.3d at 594. Although the FTCA generally permits lawsuits based on any "negligent or wrongful act or omission of any employee acting within the scope of his office or employment," 28 U.S.C. § 1346(b), "Congress determined to except certain torts from the FTCA's general waiver of sovereign immunity." Truman, 26 F.3d at 597. Thus, the FTCA "waiver of sovereign immunity does not apply to `any claim arising out of an assault or battery.'" United States v. Shearer, 473 U.S. 52, 54, 105 S.Ct. 3039, 3041, 87 L.Ed.2d 38 (1985) (quoting 28 U.S.C. § 2680(h)) (brackets omitted); see also Truman, 26 F.3d at 595. Because Plaintiff's claim for "assault" comes within § 2680(h) exclusion, the Court finds that, on its face, the FTCA cannot supply jurisdiction for that claim.
In response, Plaintiff insists that § 2680(h) does not preclude her claims because she also alleges a negligent hiring claim. For support, Plaintiff turns to Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), where the Supreme Court recognized that notwithstanding § 2680(h), the FTCA permits claims arising out of assault or battery that are the product of independent acts of negligence by a government official. See 487 U.S. at 398, 108 S.Ct. at 2449. In this vein, Plaintiff contends that "the government has conceded that an independent negligence cause of action not directly arising out of an intentional tort is not excluded from FTCA coverage by § 2680(h)" based on the United States' failure to properly screen, hire, train and supervise Plathe.
Quite frankly, Plaintiff misunderstands Sheridan. There, a drunken off-duty sailor injured the petitioners with rifle fire. See Sheridan, 487 U.S. at 395, 108 S.Ct. at 2452. Earlier that evening, the sailor was found at a naval hospital (where he worked) lying face down on a concrete floor. See id. When several on-duty sailors tried to help the drunken sailor, he broke away, and the assisting sailors fled when they say saw he had a rifle. See id. Significantly, the assisting sailors did nothing to disarm, restrain or prevent the drunken sailor from leaving. See id. The Supreme Court construed this inaction as giving rise to a separate duty to the plaintiffs even though it resulted in an excluded intentional tort under § 2680(h), noting that liability turned on the conduct of the assisting sailors, which was entirely independent of the drunken sailor's employment status as a United States employee. See id. at 397-98, 108 S.Ct. at 2453.
The Court stated:
[I]t seems perfectly clear that the mere fact that [the drunken sailor] happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if [he] had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that [the drunken sailor] was on a federal payroll.
Id. at 401-02, 108 S.Ct. at 2455-56. The Court further expressly declined to decide whether a claim for negligent hiring could ever provide such liability. See id. at 403 n. 8, 108 S.Ct. at 2456 n. 8.
In an earlier decision, the Supreme Court in Shearer made clear that injury resulting from a battery is barred under the intentional torts exception no matter what form the claim takes, and that "no semantical recasting of events can alter the fact that the battery was the immediate cause of [the injury] and, consequently, the basis of [the plaintiff's] claim." 473 U.S. at 55, 105 S.Ct. at 3041. In Shearer, a United States Army private kidnapped and murdered another private while both were off duty and away from their base at Fort Bliss, Texas. See id. at 53, 105 S.Ct. at 3041. Previously, the killer spent four years in a prison in Germany, where he was convicted of manslaughter under Germany's laws while stationed there. See id. The mother of the slain private filed suit under the FTCA, claiming that the Army knew that the killer was dangerous, yet "negligently and carelessly failed to exert a reasonably sufficient control over him and failed to warn other persons that he was at large." Id. at 53-54, 105 S.Ct. at 3041. The Shearer Court stated:
[A plaintiff] cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent's that sound in negligence but stem from a battery committed by a Government employee. Thus "the express words of the statute" bar respondent's claim against the Government.
Shearer, 473 U.S. at 54-55, 105 S.Ct. at 3041.
Although Plaintiff complains that the United States "attempts . . . to construe Sheridan in an ultra-narrow fashion," the Fifth Circuit in Leleux v. United States, 178 F.3d 750, 757 (5th Cir. 1999), did just that. Of Sheridan, the Leleux court said the following:
Sheridan stands for the proposition that negligence claims related to a Government employee's § 2680(h) intentional tort may proceed where the negligence arises out of an independent, antecedent duty unrelated to the employment relationship between the tortfeasor and the United States. . . . Only negligent conduct, undertaken within the scope of employment and unrelated to an excluded tort under § 2680(h), may form the basis of a cause of action.
Id. at 757 (emphasis added). Furthermore, the court stated, "causes of action distinct from those excepted under § 2680(h) are nevertheless deemed to be barred when the underlying governmental conduct essential to the plaintiff's claim can fairly be read to arise out of conduct that would establish an excepted cause of action." Id. at 756 (internal quotation marks removed) (quoting Atorie Air, Inc. v. Federal Aviation Admin., 942 F.2d 954, 958 (5th Cir. 1991)).
Here, Plaintiff's negligent hiring claim is substantially similar to the Shearer plaintiff's claim and quite unlike the claim in Sheridan. Plaintiff alleges in her Complaint that the United States knew that Plathe was unfit, failed to provide Plathe proper supervision and training, and created an unreasonable risk to other employees by retaining Plathe, knowing his dangerous propensities. Plaintiff further argues that "[b]y negligently hiring Plathe and by failing to warn potential victims of his known propensities, the government negligently failed to prevent the subsequent assault on Ms. Griego." (Emphasis added). Clearly, Plaintiff would have no claim but for the fact that Plathe assaulted Plaintiff. Any negligence on the United States' part, accordingly, is not independent from Plathe's intentionally tortious act. Plaintiff cannot logically contend that hiring an unfit employee is wholly separate from the very reason Plaintiff claims he is unfit — his alleged propensity to sexually assault other employees. Simply put, under Leleux's narrow rubric, Plaintiff does not identify any independent, antecedent duty the United States breached. Furthermore, Plaintiff cannot prove a claim for negligent hiring under Texas law without showing that the employee committed an actionable tort. See Gonzales v. Willis, 995 S.W.2d 729, 739 (Tex.App.-San Antonio 1999, no writ) ("In the context of negligent hiring claims, if the employee did not commit an actionable tort, the plaintiff has not been injured in the eyes of the law; therefore, the employer's negligence has not caused a legally compensable injury."). Thus, Plaintiff would have to show that Plathe committed a tort against her in order to recover under Texas law. The only tort Plaintiff can possibly assert here is her claim for assault. Assault being one of those intentional torts expressly excepted from FTCA jurisdiction, the Court finds that Plaintiff's claim for negligent hiring arises out of the assault and, therefore, precludes jurisdiction under the FTCA.
In an effort to avoid this outcome, relying on Truman, 26 F.3d at 597-98, Plaintiff argues that her Complaint can fairly be read also to state a claim for intentional infliction of emotional distress ("IIED"), an intentional tort not specifically excluded under § 2680(h) and, therefore, not barred under that section. Even if Plaintiff's Complaint can fairly be said to state a claim for IIED, if the conduct on which a plaintiff bases her claim "`aris[es] out of' what is traditionally taken to be a tort enumerated in section 2680(h), then [the plaintiff's] claim is barred." Id. at 595. In Truman, the court concluded that the plaintiff's claim for IIED was not barred because the plaintiff there did not allege assault and her claim could not, as a matter of law, amount to battery. See id. at 596 n. 1. There, the plaintiff alleged that her superior (the relevant government employee) asked her if she was "horny"; told her about sexual dreams he had about her; asked her about her sexual proclivities; was verbally abusive; accused her of 0doing things she did not do; talked about her behind her back; called her a trouble-maker; threatened her with the loss of her job; and told others that she wore excessively revealing clothing. See id. at 593. No facts there established any offensive touching or apprehension thereof.
Here, in contrast, Plaintiff merely alleges that on one occasion, Plathe came into her office and fondled her breasts. Thus, Plaintiff clearly bottoms her IIED claim, if any, on this one incident which, even viewed in a light most favorable to Plaintiff, constitutes battery (or, in Plaintiff's words, assault). Under § 2680(h), then, the United States does not waive its immunity as to this type of claim. Consequently the Court is of the opinion that the Court lacks subject matter jurisdiction under the FTCA and Plaintiff's Complaint must be dismissed.
Accordingly, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss is GRANTED.