Opinion
IP 00-1674-C-G/T
September 10, 2001
ENTRY ON DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Trs. of Pension, Welfare, Vacation Fringe Benefits Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority, and therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Defendant, United States of America, filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Plaintiff, Frances K. Parkhurst, opposes the motion. The court rules as follows.
I. Factual Background
On June 3, 1999, Frances K. Parkhurst applied for social security benefits at the Anderson, Indiana district office. (Compl. ¶ 3.) Jerry Coughlin was acting as the district office's receptionist and referred Parkhurst to a claims representative. Eight days later, Parkhurst called the district office and complained that a male employee of that office had been repeatedly calling and sexually harassing her. (Id. ¶¶ 7-8.) The caller had claimed to be from the Social Security Administration ("SSA") and told her he needed to ask her some personal questions. (Id. ¶ 4.) The man asked her if she was married, told her he was attracted to her, and told her, in sexually explicit language, that he was interested in an intimate physical relationship with her. (Id. ¶¶ 5-7.) The man identified himself as Jerry and Parkhurst taped two of the conversations. Parkhurst reported the activities to the police, who contacted Coughlin and ordered him to have no more contact with Parkhurst. (Id. ¶ 10.)
As a result of Parkhurst's complaint, an investigation was initiated, resulting, at first, in a loss of computer privileges and public contact for Coughlin, and eventually, in a termination letter. However, before Coughlin was given the letter, he resigned from the SSA for personal reasons. Parkhurst then initiated this suit against Coughlin and the United States alleging harassment under Indiana Code section 35-42-2-2, invasion of privacy, and negligent handling of her benefit application and asserted jurisdiction in this court under the Federal Torts Claim Act, see 28 U.S.C. § 1346(b)(1).
Parkhurst concedes in her answer brief that Count III, the negligent handling of her benefit claim, should be dismissed because "it was contemplated that [Coughlin] would have access to the contents of applicants' files and the plaintiff no longer contends that the government was negligent in permitting him that access." (Pl.'s Answer Br. at 3.)
II. Standard
The Government argues that this court lacks subject matter jurisdiction to decide this case and moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Federal courts are courts of limited jurisdiction, owing their power to decide cases to Article III of the United States Constitution and those statutes, properly enacted by Congress, which vest subject matter jurisdiction in the courts to decide certain matters. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Simply put, unless some statute authorizes this court to decide this matter, and that statute comports with Article III of the Constitution, this court lacks jurisdiction to affect the dispute. Palmore v. United States, 411 U.S. 389, 400-02 (1973).
In deciding a motion to dismiss based upon Federal Rule of Civil Procedure 12(b)(1), a court should liberally construe the complaint and is not bound to accept as true allegations of jurisdiction where a party properly raises factual questions of subject matter jurisdiction. The court may look beyond the jurisdictional allegations to examine any evidence submitted to determine if subject matter jurisdiction in fact exists. Roman v. United States Postal Serv., 821 F.2d 382, 385 (7th Cir. 1987).
Consideration of materials outside the pleadings when ruling on a 12(b)(1) motion does not require the court to treat the motion as one for summary judgment because the Federal Rules of Civil Procedure do not direct it. In Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986), the court noted that "[t]he omission . . . of a provision for converting a Rule 12(b)(1) motion into a summary judgment motion . . . was not an oversight." Instead, the district court is entitled to receive appropriate evidentiary submissions — "any rational mode of inquiry will do." Id. at 929.
The party seeking to invoke a district court's jurisdiction bears the burden of establishing the basis for exercising such jurisdiction. Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). It is presumed that a federal court lacks jurisdiction until it has been demonstrated that jurisdiction over the subject matter exists. Oliver v. Trunkline Gas Co., 789 F.2d 341 (5th Cir. 1986).
When the party moving for dismissal under Rule 12(b)(1) challenges the factual basis for jurisdiction, the nonmoving party (i.e., the plaintiff) must submit affidavits and other relevant evidence to resolve the factual disputes regarding the court's jurisdiction. Kontos, 826 F.2d at 576.
III. Federal Tort Claims Act
The maxim, "The King can do no wrong," derived from the days of feudal Europe when subjects were without recourse against the King for his wrongful conduct, is to some extent alive and well in modern America and embodied in the notion that the United States, as a sovereign, is immune from suit by its citizens except to the extent it consents to be sued. FDIC v. Meyer, 510 U.S. 471, 475 (1994). Congress has consented to certain suits against the Government in the Federal Tort Claims Act. 28 U.S.C. § 1346(b) 2671-80 ("FTCA").
Congress granted subject matter jurisdiction over suits brought under the FTCA to the District Courts when the suit is:
[F]or injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Id. at § 1346(b)(1). If and only if this jurisdictional provision is satisfied does the federal court wield the requisite power to entertain a suit against the United States for this sort of liability. Meyer, 510 U.S. at 475 ("Sovereign immunity is jurisdictional in nature.").
IV. Scope of Employment
Defendant raises a number of challenges to the subject matter jurisdiction of this court, the first of which is whether Coughlin was acting within the scope of his employment as is required by the FTCA. In this case, the parties appear to agree that the determination of whether Coughlin was acting within the scope of his employment is governed by the law of the State where the tort occurred, Indiana. See Brown v. Armstrong, 949 F.2d 1007, 1012 n. 7 (8th Cir. 1991). The question of whether the tortious acts of an employee are within the scope of his employment is usually a question of fact, Stropes ex rel. Taylor v. Heritage House Childrens Ctr., 547 N.E.2d 244, 248-49 (Ind. 1989), but may be determined as a matter of law, Boyle v. Anderson Fire Fighters Ass'n, 497 N.E.2d 1073, 1078 (Ind.Ct.App. 1986).
In Indiana, an employee's tortious act may fall within the scope of his employment "if his purpose was, to an appreciable extent, to further his employer's business." Stropes, 547 N.E.2d at 247; Konkle v. Henson, 672 N.E.2d 450, 456 (Ind.Ct.App. 1996). Where an employee acts partially in self-interest but is still "partially serving his employer's interests," liability will attach. Id. However, an act does not fall within the scope of employment simply because it could not have occurred without access to the employer's facilities. Id. at 457.
Even the commission of an intentional criminal act may be considered as being within the scope of employment if "the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope." Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993); accord Gomez v. Adams, 462 N.E.2d 212, 223-25 (Ind.Ct.App. 1984) (employer liable for conversion when security guard confiscated customer's identification). This requires an examination of whether the employee's actions were authorized, at least for some time, by his employer and related to his employment. Stropes, 547 N.E.2d at 250. Even willful or wanton behavior does not necessarily remove one from the scope of his employment. Kemezy, 622 N.E.2d at 1298; Indiana Dep't of Correction v. Stagg, 556 N.E.2d 1338, 1343 (Ind.Ct.App. 1990).
However, an employer is not responsible for any act done "on the employee's own initiative with no intention to perform it as part of or incident to the service for which he is employed." Stropes, at 247 (citations omitted). If some of the employee's actions were authorized, the question of whether the unauthorized acts were within the scope of employment is one for the jury. Konkle, 672 N.E.2d at 457. If none of the employee's acts were authorized, the matter is a question of law. Id.
Here, Parkhurst relies on Stropes, where the Indiana Supreme Court determined that an employer-nursing home could be held vicariously liable for the sexual assault of a mentally retarded resident because the employee, an aide at the nursing home, began the encounter by performing an authorized act which furthered his employer's business. Specifically, in Stropes, the nurse's aide began to bathe the victim and change his bedding, which were acts that he was authorized to perform. Stropes, 547 N.E.2d at 249. Thereafter, he proceeded to sexually molest the victim, an act clearly not authorized by his employer. The Stropes court noted that the unauthorized acts were not drastically different from the authorized acts because both involved touching the patient's unclothed body.
The Indiana Supreme Court determined that because both authorized and unauthorized acts were at issue and were of similar character, there was a question of fact for the jury. Therefore, summary judgment in favor of the nursing home-employer was not proper. Id. at 250.
Unlike Stropes, there is no evidence here that any of Coughlin's acts were authorized by the United States and none of Coughlin's actions served or furthered a purpose of the United States. The uncontroverted evidence demonstrated that Coughlin's duties as a district office receptionist were limited to identifying the nature of client's business with the SSA, retrieving any previous electronic files for the claims representative, and referring the clients to the claims representative for processing. (Def.'s Ex. 12 ¶¶ 4-5.) They did not include making phone calls to clients, particularly those of the sexually explicit nature described by Parkhurst.
Moreover, the unauthorized calls were clearly a violation of SSA policy and cause for disciplinary action, as evidenced by the SSA's actions upon learning of the phone calls. (Def.'s Exs. 8, 12 ¶ 6.) Although Coughlin obtained Parkhurst's number through his position, an act does not fall within the scope of employment simply because it could not have occurred without access to the employer's facilities. Konkle, 672 N.E.2d at 457. Coughlin was not authorized to access Parkhurst's file, obtain her number for personal reasons, and call her. (Def.'s Ex. 12 ¶ 5.) Clearly, his actions did not further the interests of his employer or benefit his employer in any way. Also, this court cannot say that Coughlin began performing an authorized act that turned into an unauthorized act, such as in Stropes, where the court looked at the similar character of the authorized and unauthorized conduct. In Stropes, the nurses aide was authorized to touch the patient's unclothed body. In this case, Coughlin's duties were clearly limited and did not include calling Parkhurst for a purpose unrelated to SSA business, particularly with the intention of proposing a personal or sexual relationship. (Def.'s Ex. 12 ¶ 5 (listing duties of receptionist).) SSA regulations specifically prohibit this behavior; it is in no way authorized.
Parkhurst also relies on two Indiana Court of Appeals cases, State v. Gibbs, 336 N.E.2d 703 (Ind.Ct.App. 1975), and Southport Little League v. Vaughan, 734 N.E.2d 261 (Ind.Ct.App. 2000), in support of her argument: "Is it such a stretch to argue that the government should be held liable for Mr. Coughlin's conduct?" (Pl.'s Answer Br. at 6.) In Gibbs, an employee hit another person in an employer-provided car after stopping for dinner and a few drinks. Because he was authorized to drive the car home from work and was on his way home, the court determined that he was within the scope of employment. Gibbs, 336 N.E.2d at 705-06.
Although in her answer brief, Parkhurst cites to Gibbs v. Miller, 283 N.E.2d 592 (Ind.Ct.App. 1972), the brief describes a 1975 court of appeals case that appears to Gibbs v. State.
In Vaughan, a little league equipment manager who was responsible for fitting the youth with uniforms was charged with molestation. The court determined that whether he was in the scope of employment was a question of fact because his authorized and unauthorized acts were part of the same course of conduct and closely related. Vaughan, 734 N.E.2d at 271-72. In this case, Coughlin's authorized acts were not part of the same course of conduct or closely related to his unauthorized acts so as to bring the unauthorized acts within the scope of employment.
This court expresses no opinion about the Court of Appeals' contention that the employee's "cruising and sitting in a parked car in Garfield Park, an area known for its homosexual activity," somehow should have been a "red flag" to the Little League that he was likely to molest children. 734 N.E.2d at 275-76.
Finally, this court notes that this case is similar to Konkle, where the Indiana Court of Appeals determined that a church was not liable for the sexual misconduct of its minister, because a minister's acts of molestation were not authorized by the church. The court noted that the minister was not engaged in any teaching or in any other pastoral acts when the sexual misconduct was committed and concluded that liability could not attach even though some of the acts took place in the church building. 672 N.E.2d at 457. As a result, the court of appeals concluded that the entry of summary judgment in favor of the Church was proper. Id.; accord City of Fort Wayne v. Moore, 706 N.E.2d 604, 607-08 (Ind.Ct.App. 1999) (city not liable for police officer's assault of a motorist). As in Konkle, the evidence presented here does not support an inference that Coughlin acted to any appreciable extent to further the United States' interests so as to bring his acts within the scope of employment. Rather, it is apparent that Coughlin's conduct was sufficiently "divorced in time, place, and purpose from his employment duties" so as not to impose liability upon the United States. Stropes, 547 N.E.2d at 250.
Although it is not necessary to this discussion of "scope of employment" under Indiana law, this court notes that other courts have held that a superior's sexual harassment of an employee is not within the scope of employment. See Burlington Indus. v. Ellerth, 524 U.S. 742, 757 (1998) ("The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment."); 908 F. Supp. 614, 621-22 (S.D.Ind. 1995). It would appear that if sexual harassment in the employment context was not within the scope of employment, an employee's harassment of someone outside of the job place would also generally not be within the scope of employment.
V. Conclusion
Because of this court's resolution of the scope of employment issue, it is not necessary to address Defendant's other claims. For the foregoing reasons, the Defendant's Motion to Dismiss is GRANTED. An order of dismissal for lack of subject matter jurisdiction will be entered in accordance with this entry.It does not appear from the record that Plaintiff obtained service of process on Defendant, Jerry Coughlin, and more than 120 days has expired since the filing of the Complaint. Absent the United States as a party, there is no basis for subject matter jurisdiction in this court. The Plaintiff has ten days from today's date to show cause why this court should not dismiss the Complaint as to Jerry Coughlin for failure to serve pursuant to Federal Rule of Civil Procedure 4(m) or lack of subject matter jurisdiction.
ALL OF WHICH IS ORDERED this 10th day of September 2001.