Bernadette Giovinco et al v. Social Security Administration et alNOTICE OF MOTION AND MOTION to Dismiss complaintC.D. Cal.January 30, 2017 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section DAVID DeJUTE (Cal. Bar. No. 153527) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-2574 Facsimile: (213) 894-7819 E-mail: david.dejute@usdoj.gov Attorneys for the United States UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA BERNADETTE GIOVINCO, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. No. CV 2:15-cv-7067-MMF-FFMx DATE: February 27, 2017 TIME: 10:00 a.m. COURTROOM: 5A Hon. Michael W. Fitzgerald NOTICE OF MOTION AND MOTION TO DISMISS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT And [PROPOSED] ORDER Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 1 of 19 Page ID #:406 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on Monday, February 27, 2017, at 10:00 a.m., or as soon thereafter as practicable, Defendant United States of America will, and hereby does, move to dismiss all claims contained within Plaintiff’s Corrected First Amended Complaint (Complaint) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The hearing will take place before the Honorable Michael W. Fitzgerald, in Courtroom No. 5A of the United States Courthouse, located at 350 West 1st Street, Los Angeles, California 90012. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the pleadings and filings herein, and such further and appropriate evidence. Pursuant to Local Rule 7-3, this motion is made following the conference of counsel which was held on January 12, 2017. Dated: January 30, 2017 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ David A. DeJute DAVID A. DeJUTE Assistant United States Attorney Attorneys for Defendant United States Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 2 of 19 Page ID #:407 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In their originally filed complaint, Plaintiffs alleged that Social Security Administration (SSA or Administration) employee Leroy Howland made sexually inappropriate advances and comments as Plaintiffs attempted to manage their SSA benefits. Plaintiffs contended that the United States should be held liable for failing to properly supervise its employee and for being vicariously liable for Howland’s conduct. This Court dismissed Plaintiffs’ claims. The Court first held that, pursuant to the discretionary function exception, the United States cannot be held liable for its alleged negligence or negligent supervision of its employee. The Court further held that the United States cannot be held vicariously liable where its employee acted outside the course and scope of his employment. Plaintiffs now bring the same claims in their Corrected First Amended Complaint (Complaint) by making the identical substantive allegations supplemented with conclusory allegations and argument that the Administration knew or should have known of Howland’s alleged behavior and adding citations to general policies which are non- specific and not mandatory in nature. These supplemental allegations fail to cure the deficiencies found by this Court. Furthermore, having previously brought a lawsuit which was dismissed, Plaintiff Bernadette Giovinco’s claims are additionally barred on the ground of res judicata. Accordingly, Defendant respectfully requests that this Court dismiss the action in its entirety with prejudice. II. FACTUAL ALLEGATIONS The factual allegations contained in the instant Complaint are substantively identical to the allegations contained in the original complaint. Set forth below is this Court’s summary of the allegations contained in its December 21, 2016 Order dismissing the original complaint (Order), which accurately summarizes the instant Complaint: Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 3 of 19 Page ID #:408 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Kathryn Jurgensen-Mangiarelli Sometime in May, 2013, Plaintiff Kathryn Jurgensen-Mangiarelli went to the Social Security Administration (Administration) office in San Luis Obispo to update her benefits. (Compl. ¶ 33). Jurgensen-Mangiarelli was called to the service window by Defendant Leroy Howland, who proceeded to comment on her tattoos, eventually suggesting that he “would like to see [her] naked and count the tattoos.” (Id. ¶¶ 33-35). Howland suggested that he “could make things easier on” Jurgensen-Mangiarelli if she would meet him for lunch and perform sexual favors for him and gave her his phone number. (Id. ¶¶ 33-35). Jurgensen-Mangiarelli refused and threw away the phone number. (Id. ¶ 36). See Order, 2. A few days later, the Administration notified Jurgensen-Mangiarelli that she needed to provide additional information to secure her benefits. (Compl. ¶ 37). She returned and completed the necessary paperwork with a case agent, before being again called to the service window by Howland. (Id. ¶ 38). Howland repeated his request, telling Jurgensen-Mangiarelli that ‘[t]he offer is still open[;] if you want to get naked I can help with your paperwork.” (Id.). Howland informed Jurgensen-Mangiarelli that he knew where she lived, including the color of her house - he then made it clear that he would make sure her paperwork was processed successfully in exchange for sexual favors. (Id.). Jergensen-Mangiarelli’s benefits were denied soon thereafter. (Id.). She believes her benefits were denied because she refused Howland’s requests. (Id.). See Order, 2-3. B. Cassandra Poore-Rahn On August 9, 2013, Plaintiff Cassandra Poore-Rahn went to the Administration office in San Luis Obispo to update her benefits and file an appeal. (Compl. ¶ 17). Poore- Rahn was called to the service window by Howland, who proceeded to proposition her for sexual favors. (Id. ¶¶ 18-19). On September 25, 2013, Poore-Rahn returned to the Administration office and again was called to the service window by Howland. (Id. ¶¶ Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 4 of 19 Page ID #:409 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20-21). Uncomfortable and unsettled by the exchange, Poore-Rahn ignored Howland’s offer. (Id. ¶ 22). See Order, 3. On October 4, 2013, Howland called Poore-Rahn and asked her to meet him at a Smart and Final store at 4:30 that day. (Compl. ¶ 22). Howland called Poore-Rahn again on October 7, and again told her that he would help her with her appeal if she would have sex with him. (Id. ¶ 23). See Order, 3. On October 8, 2013, Howland came to Poore-Rahn’s house. (Compl. ¶ 24). He called her home phone and her cell phone while outside the house, and again suggested that he would help her with her appeal in exchange for sexual favors. (Id.). When Howland showed up at her house a second time, on October 14, 2013, Poore-Rahn called the police. (Id. ¶ 27). See Order, 3. On November 8, 2013, Poore-Rahn reported Howland’s behavior to the Paso Robles Police Department. (Compl. ¶ 29). Nevertheless, Howland again came to Poore-Rahn’s house on November 11, 2013. (Id. ¶ 30). On November 22, 2013, Poore-Rahn met with a supervisor at the Administration and gave a statement regarding Howland’s behavior. (Id. ¶ 31). On December 9, 2013, Howland came to Poore-Rahn’s house a fifth time; Poore-Rahn again called the police and made a report. (Id. ¶¶ 32-33). See Order, 3-4. C. Bernadette Giovinco On October 28, 2013, Plaintiff Bernadette Giovinco went to the Administration office in San Luis Obispo to apply for a spend down extension on her benefits. (Compl. ¶ 10). Giovinco was called to the service window by Holwand. (Id.). Howland told Giovinco that in order to get her extension, she would have to text him a picture of her breasts. (Id. ¶¶ 11-12). He texted her his phone number, telling her he had her phone number because it was his job to know everything about her. (Id. ¶ 12). Howland then proceeded to text Giovinco at 4:00 a.m., demanding naked pictures. (Id. ¶ 13). See Order, 4. Giovinco returned to the Administration the next day, October 29, 2013, and asked to speak with the manager. (Compl. ¶ 14). Giovinco reported Howland’s behavior to the Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 5 of 19 Page ID #:410 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manager, who assured her that Holwand would not contact her again. (Id.). On October 31, a manger accompanied Giovinco to the Pismo Beach Police Department to report the incidents. (Id. ¶ 15). A police officer then contacted Howland, who did not deny Giovinco’s report. (Id.). Howland promised that he would make no further contact with Giovinco. (Id.). Nevertheless, the next day, Howland sent another text to Giovinco. (Id. ¶ 16). See Order, 4. In addition to the above allegations, Plaintiffs assert in the Complaint legal arguments previously made in the opposition to the initial motion to dismiss. Specifically, Plaintiffs allege that Howland had a pattern and practice of using his position as a filing clerk with the Administration to sexually harass the public who have Social Security benefits. (Compl. ¶¶ 5, 39). As such, Plaintiffs allege that the Administration supervisors knew or should have known of Howland’s alleged sexually inappropriate behavior but failed to take the appropriate steps to prevent Howland from repeating such behavior. (Id. ¶¶ 8, 39). Plaintiffs further allege that the actions of the Administration supervisors were taken as a result of professional discretion, not protected government discretionary functions. (Compl. ¶ 6). In particular, Plaintiffs allege that the Administration supervisors violated a mandatory policy that all governmental employees are expected to maintain a high level of integrity in the performance of their official duties. (Id. ¶¶ 7, 40). Plaintiffs further allege that a “specific and mandatory” policy was violated by the supervisors failing to put forth an “honest effort in the performance of their duties” as well as failing to disclose abuse to appropriate authorities such as “non-plaintiff beneficiaries.” (Id. ¶ 41). Plaintiffs also allege that the Administration supervisors violated the “specific mandatory policy” requiring that all governmental employees “adhere to all laws and regulations that provide equal opportunity” as well as the California law prohibiting sexual harassment and abuse. (Id.). Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 6 of 19 Page ID #:411 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. PROCEDURAL HISTORY On September 25, 2014, Plaintiff Bernadette Giovinco filed a complaint against Defendants Leroy Howland and the Social Security Administration for sexual harassment and discrimination. See Giovinco v. Socal Security Administration et al., No. CV 14- 7496-MWF. (ECF No. 1). On September 2, 2015, this Court dismissed that Complaint for lack of prosecution. (ECF No. 11). On September 8, 2015, Plaintiffs filed the instant action against Leroy Howland, who is represented by private counsel, and the Social Security Administration. See originally filed complaint (ECF No. 1). On March 8, 2016, the Court granted Plaintiffs’ request to add the United States as a Doe Defendant. (ECF No. 23). On October 27, 2016, Plaintiffs voluntarily dismissed Defendant SSA. (ECF No. 40). On December 21, 2016, the Court dismissed the originally filed complaint because the discretionary function exception barred Plaintiffs’ negligence claim and because Howland was not acting within the course and scope of his employment, thereby precluding Plaintiffs’ sexual harassment claim. (ECF No. 50). Plaintiffs now re-assert three claims against the United States, alleging negligence, negligent supervision and sexual harassment and abuse. (ECF No. 55). IV. ARGUMENT A. Law of the Case The rulings made by this Court in dismissing Plaintiffs’ originally filed complaint constitute the law of the case. In order to maintain consistency, and absent manifest injustice, those rulings are binding on the parties. Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990); United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986). Accordingly, this Court’s rulings, as set forth in the December 21, 2016 Order, should be binding. B. Sovereign Immunity and the Federal Tort Claims Act As this Court has held, lawsuits against the United States must be dismissed for lack of subject matter jurisdiction unless the plaintiff can show a waiver of sovereign Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 7 of 19 Page ID #:412 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980); Ard v. F.D.I.C., 770 F. Supp. 2d 1029, 1034 (C.D. Cal. 2011). The FTCA waives sovereign immunity with respect to tort liability “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.’” Chadd v. United States, 794 F.3d 1104, 1108 (9th Cir. 2015) (quoting 28 U.S.C. § 1346(b)). The FTCA, however, “d[oes] not waive the sovereign immunity of the United States in all respects,” for Congress “was careful to except from the Act’s broad waiver of immunity several important classes of tort claims.” Id. (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808 (1984)). Relevant to this case is the discretionary function exception. 28 U.S.C. § 2680(a). See generally Order dated December 21, 2016 (Order), ECF No. 50, 7. See generally Order, 7. C. The Discretionary Function Exception Bars the Direct Negligence Claims The discretionary function exception retains the sovereign immunity of the United States for “any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This exception “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” Chadd, 794 F.3d at 1108 (quoting Varig, 467 U.S. at 808). It is designed to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. (quoting Varig, 467 U.S. at 814); see O’Toole v. United States, 295 F.3d 1029, 1033 (9th Cir. 2002) (“In other words, if judicial review would encroach upon th[e] type of balancing done by an agency, then the [discretionary function] exception applies” (internal quotation marks omitted) (alterations in original)). See generally Order, 8. Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 8 of 19 Page ID #:413 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court has devised a two-step process for determining whether the discretionary function exception applies. See United States v. Gaubert, 499 U.S. 315, 328-34 (1991) (applying the discretionary function exception at the pleading stage and directing dismissal of the complaint for lack of subject matter jurisdiction). First, a court considers whether the challenged conduct is “discretionary in nature,” i.e., if the acts involve “an element of judgment or choice.” Chadd, 794 F.3d at 1108-09 (quoting Gaubert, 499 U.S. at 322). If there is a statute, regulation, or policy that dictates “mandatory and specific action,” the discretionary function exception cannot apply because “there can be no element of discretion when an employee has no rightful option but to adhere to the directive.” Id. (quoting Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)) (emphasis added). See generally Order, 8. Second, a court considers whether the challenged action “is of the type Congress meant to protect” under the discretionary function exception, i.e., whether it “involves a decision that is susceptible to social, economic, or political policy analysis.” Ard, 770 F. Supp. 2d at 1034. In conducting this inquiry, the Supreme Court has emphasized that the discretionary function exception “is not confined to the policy or planning level” and extends “to the actions of Government agents” taken “in the course of day-to-day activities.” Gaubert, 499 U.S. at 323, 325, 334. “It is also important to bear in mind that the decision giving rise to tort liability ‘need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis.’” Chadd, 794 F.3d at 1109 (quoting Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998)) (emphasis added). The focus “is not on the agent’s subjective intent” in exercising discretion, but rather on “the nature of the actions taken and whether they are susceptible to policy analysis.” Id. (quoting Gaubert, 499 U.S. at 325). See generally Order, 8. Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 9 of 19 Page ID #:414 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The personnel decisions challenged in Plaintiffs’ Complaint were discretionary because they were not governed by any “mandatory and specific” directive compelling certain personnel actions to be taken by SSA in response to an employee alleged to have behaved in a sexually inappropriate manner Although the United States bears the burden of proving that the discretionary function exception applies, a plaintiff must nonetheless allege a claim “that is facially outside the discretionary function exception in order to survive a motion to dismiss.” Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (per curiam) (quoting Prescott v. United States, 973 F.2d 696, 702 & n.4 (9th Cir. 1992)); see Ard, 770 F. Supp. 2d at 1034 (requiring the plaintiffs to identify whether any federal statute, regulation, or policy applied to the conduct challenged in their lawsuit). Here, the first step of the Supreme Court’s test is satisfied because Plaintiffs fail to identify any “mandatory and specific” directive that controlled how SSA responded to allegations that Howland engaged in sexually inappropriate behavior.1 In dismissing the originally filed complaint, the Court agreed that Plaintiffs had failed to identify any mandatory or specific directive. See Order, 8 (“Under the first step of the analysis, Plaintiffs cite to no statute, regulation, or policy requiring the Government to take mandatory and specific action with regard to Howland.”). In the instant Complaint, despite providing citations to general policies, Plaintiffs still have not identified any policy sufficiently specific and mandatory to meet the first requirement of the test. See Bailey v. United States, 623 F.3d 855, 860 (9th Cir. 2010) (“[A]n agency retains discretion whether to act where no statute or agency policy dictates the precise manner in which the agency is to complete the challenged task.” (emphasis 1 See also, e.g., Dichter-Mad Family Partners, LLP v. United States, 707 F. Supp. 2d 1016, 1040 (C.D. Cal. 2010) (“Like the plaintiff in Doe v. Holy See, Plaintiffs in this case largely fail to identify any mandatory ‘policies’ or ‘practices’ that were violated in this case. Plaintiffs’ ‘labels and conclusions’ are insufficient to satisfy the pleading requirements of Fed. R. Civ. P. 8(a)(2).” (citations omitted)). Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 10 of 19 Page ID #:415 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 added by Court). See Order, 9. Instead, Plaintiffs cite to the Standard of Ethical Conduct of the Executive Branch (Compl. ¶ 7), which requires federal employees to place loyalty to the Constitution and laws above private gain (Id.¶ 40), requires employees to put forth an honest effort in the performance of their duties, to disclose abuse to the authorities, and to adhere to regulations which provide equal opportunity (Id.¶ 41), and prohibits solicitation of illegal gratuities or the receipt of any other form of remuneration (Id.¶ 42). Each of these policies is too general to be considered “mandatory and specific.” As this Court held in dismissing the original complaint, where Plaintiffs referenced one of the policies set forth above: A general policy requiring that Administration programs and services be offered in a nondiscriminatory manner still leaves the Administration with significant discretion as to how that directive should be implemented. Plaintiffs cite to “no specific directives that mandate specific action” in response to a social security beneficiary claiming to have been harassed by an Administration employee. Miller, 163 F.3d at 595. Order, 9. Plaintiffs have not cured the deficiency found by this Court by citing to additional general policies -- concerning loyalty, honest effort, disclosure, or remuneration -- which do not mandate specific action. In the instant Complaint, as before, Plaintiffs cite to “’no specific directives that mandate specific action’ in response to a social security beneficiary claiming to have been harassed by an Administration employee.” Order, 9. Accordingly, the first step of the analysis is met. 2. Decisions regarding the supervision, discipline, or retention of Howland were, by their nature, susceptible to policy analysis. The challenged supervision and retention of Howland not only involved “an element of judgment or choice,” but are also the types of decisions that Congress intended to shield from judicial review. Plaintiffs’ overarching contention is that any investigation and discipline regarding Howland’s conduct was insufficient, and his alleged retention Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 11 of 19 Page ID #:416 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and lack of supervision were not appropriate to stop such behavior. Such vague claims involve hindsight and “judicial second guessing” that “encroach on the typ[e] of balancing done by an agency” in making personnel decisions. Chadd, 794 F.3d at 1108; O’Toole, 295 F.3d at 1033. For this reason, the Ninth Circuit has long held that claims of “negligent and reckless employment, supervision and training . . . fall squarely within the discretionary function exception.” Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000); accord Vickers v. United States, 228 F.3d 944, 950 (9th Cir. 2000) (holding that the discretionary function exception barred claims of negligent supervision and retention where a federal employee shot the plaintiff with a service revolver, did not attend firearms testing and had previously been investigated for firearms-related violence).2 See Order, 9 (“The governing case law is even clearer that the particular exercise of discretion at issue in this action ‘was “of the kind that the discretionary function exception was designed to shield.”’”) (citation omitted). As this Court noted, the case of Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009) (per curiam), is “directly on point:” There, the court (applying the FTCA standard) determined that the Holy See’s decision to continue employing a priest known to have a history of sexually abusing children in a capacity where he would continue to have contact with children was subject to the discretionary function exception. Doe, 557 F.3d at 1085. The court held that “the decision of whether and how to retain and supervise an employee, as well as whether to warn about his dangerous proclivities, are the type 2 See also, e.g., Gager v. United States, 149 F.3d 918, 920-22 (9th Cir. 1998) (United States Postal Service’s decision not to provide training and supervision in mail bomb detection fell within the discretionary function exception); Ard, 770 F. Supp. 2d at 1038-39 (dismissing claims that the Office of Thrift Supervision and the Federal Deposit Insurance Corporation negligently supervised employees who made erroneous public statements about a bank’s financial condition). Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 12 of 19 Page ID #:417 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of discretionary judgments that the exclusion was designed to protect.” Id. at 1084 (emphasis added). Order, 9. This Court further explained that Plaintiffs attempt to characterize the actions of the Administration supervisors as professional discretion rather than protected governmental discretion was contrary to the holding in Doe. Order, 10. The Court concluded that “[t]he law is unequivocal on this point, and thus the second prong of the discretionary function exception test is met.” Order, 10. The Ninth Circuit’s analysis in Doe directs the dismissal of Plaintiffs’ direct negligence claims.3 As in Doe, Plaintiffs’ Complaint alleges that the United States was on notice of Howland’s sexually inappropriate behavior but failed to properly discipline him, supervise him or terminate him from his position. See Doe, 557 F.3d at 1084. Such discretionary personnel decisions are not subject to judicial review even if the agency’s decisions were deficient or otherwise unreasonable. See 28 U.S.C. § 2680(a) (barring claims based on a discretionary function or duty “whether or not the discretion involved be abused” (emphasis added)). Nor is it relevant whether the Administration in this case actually exercised any discretion or judgment regarding its response to Howland’s prior alleged misconduct. Doe, 557 F.3d at 1084-85. Consistent with the Supreme Court’s guidance in Gaubert, the Ninth Circuit explained that challenged decisions are shielded by the discretionary function exception so long as they are “susceptible to a policy analysis”-they “need not 3 District court decisions within the Ninth Circuit are in accord. See Thompson v. United States, No. 11-791, 2015 WL 1208694, at *4-11 (D. Haw. Mar. 16, 2015) (granting motion to dismiss claims of negligent supervision and negligent training as barred by the discretionary function exception where the plaintiff alleged that his 17-year-old daughter was sexually assaulted by a recruiter for the Hawaii Army National Guard); see also Schmid v. Dep’t of Army, No. 11-5042, 2013 WL 2458363, at *12-16 (E.D. Wash. June 6, 2013) (dismissing claims of negligent supervision and retention, negligent infliction of emotional distress, and intentional infliction of emotional distress as barred by the discretionary function exception where the Army allegedly failed to adequately address “death threats, incessant contact, letters, and other contact” directed to the plaintiff by an employee); West v. United States, No. CV 15-1234-JLS (C.D. Cal. April 11, 2016) (granting motion to dismiss claim of negligent supervision and retention as barred by the discretionary function exception where an employee of the Postal Service allegedly committed sexually predatory acts on postal customers) (attached). Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 13 of 19 Page ID #:418 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 actually be grounded in policy considerations.” Id. (quoting Kelly v. United States, 241 F.3d 755, 764 n.5 (9th Cir. 2001)) (emphasis in original). Because policy choices “could have influenced” the decision to retain the priest, the court held that it was “the kind of judgment that the discretionary function exception was designed to shield.” Id. (emphasis added). Because the decisions challenged in the Complaint are susceptible to policy analysis, Plaintiff’s action is barred by the discretionary function exception. Accordingly, Plaintiffs’ direct negligence claims must be dismissed for lack of subject matter jurisdiction. D. Plaintiffs’ Vicarious Liability Claim Must Be Dismissed Because the Alleged Conduct Was Outside the Scope of Howland’s Employment Under the FTCA, whether a federal employee acted within the scope of his or her employment turns on “principles of respondeat superior of the state in which the alleged tort occurred.” Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 876 (9th Cir. 1992). In California, liability under respondeat superior is imposed if the employee’s conduct “may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer.” Farmers Ins. Grp. v. County of Santa Clara, 11 Cal. 4th 992, 1003 (1995). As this Court noted: California courts have “uniformly” held (with one exception, that of on-duty police officers who assault members of the public) that employers are not liable for the sexual assaults or molestations of their employees. Order, 11, citing Z.V. v. City of Riverside, 238 Cal.App.4th 889, 899 (2015); see also Farmers, 11 Cal.4th at 1006 (collecting cases).4 4 See, e.g., Farmers, 11 Cal. 4th at 992 (county was not liable for sheriff deputy’s sexual harassment of other deputies at county jail); Lisa M. v. Henry Mayo Newhall Memorial Hosp., 12 Cal. 4th 291, 311-14 (1995) (hospital not liable for ultrasound technician’s sexual molestation of a patient during examination); John R. v. Oakland Unified Sch. Dist., 48 Cal. 3d 438, 447-50 (1989) (school district not liable for teacher’s sexual molestation of student); Myers v. Trendwest Resorts, Inc., 148 Cal. App. 4th 1403, 426-35 (2007) (manager of timeshare company not acting within the scope of his Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 14 of 19 Page ID #:419 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California courts consistently explain that an employer cannot be vicariously liable where an employee substantially deviates from employment duties for personal purposes. Id. at 1004-05; see Id. at 1007 (acts of sexual misconduct were undertaken “solely for employees’ personal gratification and had no purpose connected to the employment”). Further, “[i]f an employee’s tort is personal in nature, mere presence at the place of employment and attendance to occupational duties prior or subsequent to the offense will not give rise to a cause of action against the employer under the doctrine of respondeat superior.” Id. at 1005; see also Order, 12. For example, in Farmers, the California Supreme Court considered whether a deputy sheriff was acting within his scope of employment when he lewdly propositioned and offensively touched other deputies while working at the county jail. See Id. at 997. After surveying prevailing case law on respondeat superior, the court held that the county was not liable for the deputy’s conduct because the deputy’s “repeated requests for sexual favors and his inappropriate touching were motivated for strictly personal reasons unrelated to the guarding of inmates or the performance of any other duty of a deputy employment when he sexually harassed an employee); John Y. v. Chaparral Treatment Ctr., Inc., 101 Cal. App. 4th 565, 574 (2002) (trial court did not error in refusing to give jury instruction for vicarious liability of residential treatment center whose counselor molested resident); Maria D. v. Westec Residential Sec., Inc., 85 Cal. App. 4th 12, 145- 50 (2000) (security company not liable for rape committed by on-duty security guard); Juarez v. Boy Scouts of Am., Inc., 81 Cal. App. 4th 377, 393-94 (2000) (Boy Scouts not liable to boy who was sexually molested by volunteer scout leader); Debbie Reynolds Prof’l Rehearsal Studios v. Superior Court, 25 Cal. App. 4th 222, 226-29 (1994) (dance studio not liable for sexual molestation of student by dance instructor); Jeffrey E. v. Cent. Baptist Church, 197 Cal. App. 3d 718, 721-24 (1988) (church not liable for sexual assault by Sunday school teacher); Alma W. v. Oakland Unified Sch. Dist., 123 Cal. pp. 3d 133, 139 (1981) (school district not liable for rape of student by janitor). As this Court observed in Taylor v. United States, California courts have held employers vicariously liable for sexual torts only in “rare circumstances” involving a “unique dynamic, such as the authority of police officers over detainees or the special relationship between therapists and their clients.” No. 13-371-SVW-PJW, 2013 WL 3223420, at *4 (C.D. Cal. June 25, 2013) (citing Mary M. v. City of Los Angeles, 54 Cal. d 202 (1991); Richard H. v. Larry D., 198 Cal. App. 3d 591 (1988)); see also M.P. v. City of Sacramento, 177 Cal. App. 4th 121, 124 (2009) (limiting Mary M. to its facts and holding that city was not liable for sexual assault by firefighters). Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 15 of 19 Page ID #:420 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sheriff,” and thus his conduct could not “fairly be regarded as typical of or broadly incidental to the operation of a county jail.” See Id. at 1007-08 (emphasis added). Similarly, in Taylor v. United States, this Court considered whether a mail carrier was acting with his scope of employment with the United States Postal Service (USPS) when, while delivering mail to a member of the public, he exposed himself and masturbated. See No. 13-371-SVW-PJW, 2013 WL 3223420, at *1 (C.D. Cal. June 25, 2013). After considering Farmers and other California cases analyzing employer liability for sexual misconduct, this Court held that the mail carrier’s actions were “neither ‘typical of or broadly incidental to’ his duties as a letter carrier for the USPS, and by any measure [were] a ‘substantial deviation’ from his standard duties.” Id. at *3- 4 (citation omitted) (emphasis added). This Court further reasoned that the employee’s conduct was “neither engendered by his employment nor generally foreseeable from the nature of the enterprise,” i.e., the “physically attenuated interaction of mail delivery.” Id. at *4. Here, Howland’s alleged sexual conduct was personally motivated and bore no relationship to his employment duties as an SSA intake clerk. See Farmers, 11 Cal. 4th at 1008 (“[A]n employer will not be held vicariously liable where, as here, it clearly appears that neither directly nor indirectly could [the employee] have been serving his employer.” (internal quotation marks omitted, second alteration in original)). Although Howland’s averred acts occurred while Howland worked at the SSA intake window, this alone is insufficient for vicarious liability. See Taylor, 2013 WL 3223420, at *2 (“That the employment brought tortfeasor and victim together in time and place is not enough.”) (quoting Lisa M., 12 Cal. 4th at 298)). Clearly, Howland’s actions were not in furtherance of his duties as an SSA employee. In the instant Complaint, Plaintiffs contend that respondeat superior should apply because the Administration knew or should have known of Howland’s alleged inappropriate behavior. (Compl. ¶¶ 5, 8, 39). These allegations are irrelevant to this claim of vicarious liability under respondeat superior. See Farmers, 11 Cal. 4th at 1003- 04, 1009-10 (distinguishing between “foreseeability” for direct negligence claims and Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 16 of 19 Page ID #:421 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for purposes of respondeat superior). As this Court held in dismissing the original complaint, “California courts have consistently found sexual assaults to be conducted solely for “personal purposes,” and the Court can find no basis to distinguish those cases here.” Order, 13. Accordingly, because Howland was acting beyond the scope of his federal employment when he engaged in the acts alleged, this suit should be dismissed with prejudice. E. RES JUDICATA BARS GIOVINCO’S CLAIMS Res judicata, or claim preclusion, prohibits lawsuits on Aany claims that were raised or could have been raised@ in a prior action. Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (emphasis in original); W. Radio Services Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). The Ninth Circuit has held: “Res judicata bars relitigation of all grounds of recovery that were asserted, or could have been asserted, in a previous action between the parties, where the previous action was resolved on the merits. It is immaterial whether the claims asserted subsequent to the judgment were actually pursued in the action that led to the judgment; rather, the relevant inquiry is whether they could have been brought.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1079 (9th Cir. 2003). Res judicata applies when there is: (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties. Owens, 244 F.3d at 713. All three res judicata factors are present here. 1. Identity of Claims If the present action arises out of the Asame transactional nucleus of facts@ as the prior action, then there is an identity of claims. Id. at 714. In deciding whether two suits arise out of the Asame transactional nucleus,@ the determinative factor is Awhether Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 17 of 19 Page ID #:422 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they are related to the same set of facts and whether they could conveniently be tried together.@ Western Systems, Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). The allegations in the instant action are related to the set of facts presented in the prior action and could have been asserted, and tried together in the first instance. In both the prior and instant action, Giovinco sued Howland and SSA, alleging that Howland engaged in sexually inappropriate conduct and that SSA failed to adequately control him. 2. Final Judgment on the Merits Res judicata also requires a final judgment on the merits. Dismissal for failure to prosecute is a final judgment on the merits. See, e.g., Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714 (9th Cir.2001) (holding that dismissal of the prior action for failure to prosecute, because appellant failed to file an opposition to a motion to dismiss, was an adjudication on the merits under Rule 41(b)). 3. Privity Between the Parties The final res judicata prong requires privity between the parties in both the prior and instant actions. Identical parties are not required so long as there is privity between the parties, Athat is, when there is sufficient commonality of interest.@ In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983). Examples of privity include: Awhere there is a substantial identity between the party and nonparty, where the nonparty had a significant interest and participated in the prior action, and when the interests of the nonparty and party are so closely aligned as to be virtually representative. Finally, a relationship of privity can be said to exist when there is an express or implied legal relationship by which parties to the first suit are accountable to non-parties who file a subsequent suit with identical issues.@ In Re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997). The prior action named SSA as a defendant. The present action now names the Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 18 of 19 Page ID #:423 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States as a defendant. Notably, the Supreme Court has held that the United States is in privity with its agencies. See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402 (1940) (the Agovernment and its officers are in privity for purposes of res judicata@); George v. U.S., 2008 U.S. Dist. Lexis 31838, *5 (N.D. Cal. 2008) (applying res judicata because the Internal Revenue Service, the named defendant in the prior action, is in privity with the United States, the defendant in the action at hand). Accordingly, the United States and SSA are in privity for purposes of res judicata. In sum, all three prongs are satisfied for application of res judicata. Giovinco could have asserted her current claims against the government in the prior action but failed to do so. Accordingly, this new action is barred by the doctrine of res judicata as to Giovinco and her claims should be dismissed. V. CONCLUSION For the foregoing reasons, Defendant’s Motion to Dismiss should be granted with prejudice. Dated: January 30, 2017 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section /s/ David A. DeJute DAVID A. DeJUTE Assistant United States Attorney Attorneys for Defendant United States Case 2:15-cv-07067-MWF-FFM Document 60 Filed 01/30/17 Page 19 of 19 Page ID #:424 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA BERNADETTE GIOVINCO et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants. No. CV 2:15-cv-7067-MMF-FFMx [PROPOSED] ORDER The Court, having read and considered Defendant United States’ Motion to Dismiss, along with all pleadings in connection therewith, and having considered the oral argument, if any, IT IS HEREBY ORDERED that the Complaint as against the United States is dismissed with prejudice. IT IS SO ORDERED. DATED: ________________________________ MICHAEL W. FITZGERALD United States District Judge Case 2:15-cv-07067-MWF-FFM Document 60-1 Filed 01/30/17 Page 1 of 2 Page ID #:425 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:15-cv-07067-MWF-FFM Document 60-1 Filed 01/30/17 Page 2 of 2 Page ID #:426