United States District Court, District of Maryland, Southern Division
March 6, 2014
REGINALD B. STEWART, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
Paul W. Grimm United States District Judge
Two of Plaintiff’s female subordinates reported him to his supervisor for sexual harassment. Less than twenty-four hours later, he was fired from his position with the Senate Appropriations Committee. Plaintiff believes those allegations were fabricated, and filed a tort suit against the two subordinates. I must decide whether the subordinates were acting within the scope of their employment when they reported sexual harassment to Plaintiff’s supervisor. If so, the United States may substitute itself as defendant. Finding that the subordinates were, and that the United States is the proper defendant, Plaintiff’s Complaint must be dismissed because he has failed to comply with the conditions precedent to filing an FTCA claim.
Plaintiff Reginald B. Stewart filed a two-count complaint in the Circuit Court for Prince George’s County, Maryland, alleging defamation and tortious interference with business relations against Celina M. Inman and Valerie A. Hutton. Compl., ECF No. 2. Inman and Hutton are employees of the Government Printing Office, who worked under Plaintiff while detailed to the Senate Appropriations Committee (the “Committee”). See Notice of Removal 2. The gravamen of the Complaint is that Inman and Hutton fabricated allegations of sexual harassment that resulted in Plaintiff’s termination. Compl. ¶ 8.
Two months later, the Government removed the action to this Court under 28 U.S.C. § 2679(d) and moved to substitute the United States as the proper defendant based upon its certification that Inman and Hutton were acting within the scope of their employment. Gov’t’s Mot. to Substitute, ECF No. 6; Notice of Removal. The substitution was granted subject to Plaintiff’s right to challenge the Attorney General’s certification. See Order, ECF No. 13. The Government filed its Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) on December II, 2013. Plaintiff filed a timely opposition challenging the Attorney General’s certification, together with a Motion to Remand, ECF No. 21. I ordered additional briefing on the appropriateness of limited discovery, Letter Order, ECF No. 22, which the parties filed, ECF Nos. 23, 24, 26, and 28. All issues are briefed fully, and a hearing is not necessary. See Loc. R. 105.6.
II. Motion to Seal
The Government’s Consent Motion to Seal Exhibit B to its Reply contains “specific factual representations to justify the [requested] sealing” and “an explanation why alternatives to sealing would not provide sufficient protection, ” as required by Loc. R. 105.11. Therefore, the motion to seal Exhibit B IS GRANTED. However, the motion itself contains no such protectable information and will not be sealed. The Clerk SHALL UNSEAL the motion but SHALL SEAL the accompanying exhibit, ECF No. 30-1.
III. Motion to Remand
Plaintiff seeks to withdraw his Motion to Remand. See Jan. 24, 2014 Letter 4, ECF No. 28. The withdrawal is granted and Plaintiff’s Motion to Remand IS DENIED AS MOOT.
IV. Challenge to the Attorney General’s Certification
Next, Plaintiff challenges the substitution of the United States as the defendant because, in his view, Inman and Hutton’s allegedly false reports of sexual harassment were outside the scope of their employment. Pl.’s Opp’n 7–9. Alternatively, Plaintiff requests limited discovery, seeking information “related to Inman and Hutton’s current status with the Appropriations Committee and/or prior unsubstantiated allegations of harassment.” Id. In response, the Government argues (1) that Inman and Hutton were acting within the scope of their employment, as defined by District of Columbia law, and (2) that “Plaintiff’s requested discovery aimed at undermining the merit of the sexual harassment accusations would yield no facts that would undermine the U.S. Attorney’s scope certification.” Gov’t’s Reply 3–4.
The reports of Plaintiff’s harassment that Inman and Hutton made to the Committee were within the scope of their employment for the purposes of 28 U.S.C. § 2679(d)(2). What falls within the scope of employment is determined by the law of the state in which the alleged tort occurred. Maron v. United States, 126 F.3d 317, 323–24 (4th Cir. 1997); Jacobs v. Vrobel, 724 F.3d 217, 221 (D.C. Cir. 2013). The parties agree that District of Columbia law governs. See Pl.’s Opp’n 8 (“In the District of Columbia (where the alleged conduct occurred) . . . .”); Gov’t’s Reply 3 (“the allegedly defamatory statements and the purported ‘tortious interference with business relations’ occurred in office buildings in the District of Columbia.”). Under District of Columbia law, Plaintiff “must prove by a preponderance of the evidence that [the employee] was acting beyond the scope of his employment.” Koch v. United States, 209 F.Supp.2d 89, 92 (D.D.C. 2002) (citing Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997)), aff’d, No. 02-5222, 2002 WL 31926832 (D.C. Cir. Dec. 31, 2002). An employee acts within the scope of her employment if “(a) [her action] is of the kind [s]he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the [employer].” Jacobs, 724 F.3d at 221 (D.C. Cir. 2013) (citing Restatement (Second) of Agency § 228 (1958)).
In this case, the only action that could give rise to Inman and Hutton’s potential tort liability is their filing of allegedly false sexual harassment reports about Plaintiff. See Compl. ¶ 21 (“Defendants’ statements regarding Plaintiff’s conduct to Senate management and/or Plaintiff’s supervisors were false and made intentionally to defame and harm Mr. Stewart’s reputation.”). But the allegedly false nature of the reports is irrelevant to the scope of employment determination. See Nadler v. Mann, 731 F.Supp. 493, 497 (S.D. Fla. 1990) (citing Rochon v. F.B.I., 691 F.Supp. 1548, 1562 (D.D.C. 1988)), aff’d in part, rev’d in part, 951 F.2d 301 (11th Cir. 1992). “Were the law otherwise, government officials could not speak to their subordinates without ‘apprehension that the motives that control [their] official conduct may, at any time, become the subject of inquiry in a civil suit for damages.’” Rochon, 691 F.Supp. at 1561–62 (quoting Spalding v. Vilas, 161 U.S. 483, 498 (1896)).
Plaintiff has failed to demonstrate by a preponderance of the evidence that Inman and Hutton’s reports of Plaintiff’s misconduct to his supervisor were outside the scope of their employment. See, e.g., Lerner v. Shinseki, No. ELH-10-1109, 2011 WL 2414967, at *7–10 (D. Md. June 10, 2011) (finding that an internal employment complaint was made within the scope of employment); Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 197 (D.D.C. 2002) (same). While Plaintiff is correct that certain on-the-job actions could be outside the scope of employment,  reports of sexual harassment to an employee’s chain of management obviously are within the scope of her employment. Sexual harassment within the workplace is prohibited by federal law. See 29 C.F.R. § 1604.11. Employers face potential liability if they fail to have in place reasonable procedures to investigate and respond to allegations of workplace harassment.
See Mikels v. City of Durham, N.C. , 183 F.3d 323, 329 (4th Cir. 1999). Employees have a right and, in some cases even an obligation, to report sexual harassment. See E.E.O.C. v. Cromer Food Servs., Inc., 414 F. App’x 602, 608 (4th Cir. 2011); Mukaida v. Hawaii, 85 F. App’x 631, 632 (9th Cir. 2004). It is difficult to credit Plaintiff’s unsupported argument to the contrary.
And, although Plaintiff argues that Inman and Hutton fabricated their sexual harassment claims, see Jan. 24, 2014 Letter 1–3, ECF No. 28, this alone would not defeat the Attorney General’s certification, see Nadler, 731 F.Supp. at 497. Moreover, the Government has submitted exhibits that graphically demonstrate there was sufficient truth to Inman and Hutton’s complaints to support the Attorney General’s determination that they were acting within the scope of their employment. See Exhibit B, ECF No. 30-1.
Finally, Plaintiff’s request for limited discovery IS DENIED. Plaintiff cites Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009) for the proposition that he has a mandatory right to limited discovery. Pl.’s Opp’n 9. Even assuming that Plaintiff’s characterization of Wuterich is correct, which is doubtful, see Armstrong v. Thompson, 759 F.Supp.2d 89, 96 (D.D.C. 2011) (“there is no right to even limited discovery to investigate a [§ 2679] certification decision unless a movant has made allegations ‘sufficient to rebut the government's certification, ’” (quoting Wuterich, 562 F.3d at 383)), it is not binding on this Court. Rather, the Fourth Circuit has made clear:
[T]he district court may allow (in its discretion) limited discovery or conduct an evidentiary hearing, but should not do so if the certification, the pleadings, the affidavits, and any supporting documentary evidence do not reveal an issue of material fact. It is for the district court to assess the sufficiency of the evidence produced by the plaintiffs. Only if the district court concludes that there is a genuine question of fact material to the scope-of-employment issue should the federal employee be burdened with discovery and an evidentiary hearing.
Gutierrez de Martinez, 111 F.3d at 1155. Plaintiff has failed to demonstrate that there is a material question of fact that must be resolved through discovery for me to reach the scope-of-employment determination.
V. Dismissal of the Case
Because the Attorney General’s certification has been upheld, the FTCA is Plaintiff’s exclusive remedy. See 28 U.S.C. § 2679(b)(1). The Government argues that Plaintiff has not filed an administrative claim and, therefore, has failed to exhaust his administrative remedies. Gov’t’s Mem. 5–6. Plaintiff acknowledges that his claims are not actionable under the FTCA. Pl.’s Opp’n 10. Accordingly, because Plaintiff has failed to demonstrate that he exhausted his administrative remedies, this Court lacks subject matter jurisdiction over his claims. See Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th Cir. 2000) (citing 28 U.S.C. § 2401(b)).
The Government’s Consent Motion to Seal, ECF No. 30, IS GRANTED. The Government’s Motion to Dismiss, ECF No. 18, IS GRANTED. Plaintiff’s Complaint, ECF No. 2, is DISMISSED. Plaintiff’s Motion to Remand, Motion for Reconsideration, and/or Motion for Limited Discovery, ECF No. 21, IS DENIED. The Clerk SHALL CLOSE this case.
It is so ORDERED.