Lewis v. Donley
Order on Motion to Dismiss
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
JANET D. LEWIS,
MICHAEL W. WYNNE, et al.,
ORDER AND OPINION
[Re: Motion at Docket 32]
I. MOTION PRESENTED
At docket 32, defendant Michael Wynne, Secretary of the United States Air
Force, and all fourteen individually named defendants, move to dismiss all of plaintiff’s
claims against individual defendants and to dismiss plaintiff’s claims under the Federal
Tort Claims Act and 42 U.S.C. § 1981 against the Secretary pursuant to Federal Rule of
Civil Procedure 12(b)(1) and (6). Defendants also ask the court to strike plaintiff’s claim
for punitive damages. At docket 33, plaintiff opposes the motion. Defendants reply at
docket 34. Oral argument was heard on October 31, 2006.
Janet Lewis is an employee of the United States Air Force and works in the
Child Development Center Program at Elmendorf Air Force Base in Anchorage, Alaska.
On March 8, 2006, Lewis filed the underlying complaint against Michael Wynne,
Secretary of the United States Air Force, and fourteen individual defendants, each of
whom was a federal civilian employee or member of the United States Air Force at all
relevant times.1 Lewis filed a second amended complaint against the same defendants
on September 1, 2006.2
Lewis is African American. All of the individually named defendants are
Caucasian. In her complaint, Lewis alleges that the defendants made false claims
about her and proposed terminating her employment based on those false claims,
discouraged her from applying for a director position, hired a lesser qualified Caucasian
employee for a position for which Lewis applied, falsely inflated the other applicant’s
scores, retaliated against Lewis after she filed a complaint with the Air Force’s Equal
Employment office, yelled at Lewis, tasked her with extra work, threatened and
badgered her, treated Lewis differently than other employees, put unwarranted negative
comments in her employment file, made misleading statements and false accusations
about Lewis, and suspended Lewis based on false claims. The complaint also alleges
that Lewis sought therapy and medical treatment to “help cope with the stress and
anxiety she was receiving from her superiors at work.”3
Lewis’ complaint alleges eleven claims against all defendants. Each claim
alleges that the defendants acted “in their individual capacities and as agents of the
United States Air Force.”4 Claims one through five, which assert that defendants
discriminated against Lewis on the basis of race, allege violations of Title VII.5 Claim six
alleges that defendants “acted to deprive Ms. Lewis of equal rights under the law on
account of her race” in violation of 42 U.S.C. § 1981.6 Claim seven alleges the
intentional infliction of emotional distress. Claim eight alleges the negligent infliction of
emotional distress. Claim nine alleges defamation. Claim ten alleges negligent
Doc. 44 at 21.
See doc. 44.
42 U.S.C. § 2000e-2(a)(1), (2)(a)(2), and (3)(a).
Doc. 44 at 26.
supervision. Claim eleven requests punitive damages on the basis that defendants
“acted maliciously against Ms. Lewis and/or in conscious disregard of her rights.”7 With
respect to the claims which arise under federal law, the court has original jurisdiction
pursuant to 28 U.S.C. § 1331. The court may exercise jurisdiction over state law claims
pursuant to 28 U.S.C. § 1367.
III. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim made pursuant to Federal Rule of
Civil Procedure 12(b)(6) tests the legal sufficiency of a claim. A dismissal for failure to
state a claim can be based on either “the lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal theory.”8 In reviewing a
Rule 12(b)(6) motion, “[a]ll allegations of material fact in the complaint are taken as true
and construed in the light most favorable to the nonmoving party.”9 The court is not
required to accept every conclusion asserted in the complaint as true; rather, the court
examines whether conclusory allegations follow from the description of facts alleged by
the plaintiff.10 A claim should only be dismissed if "it appears beyond doubt that a
plaintiff can prove no set of facts in support of his claim which would entitle him to
Under Federal Rule of Civil Procedure 12(b)(1), a party may seek dismissal of
an action for lack of subject matter jurisdiction. “A federal court has subject matter
jurisdiction over an action that either arises under federal law, or when there is complete
diversity of citizenship between the parties and the amount in controversy exceeds
$75,000.”12 When a defendant challenges subject matter jurisdiction under Rule
Doc. 44 at 27.
Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).
Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).
Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
Vignolo, 120 F.3d at 1077.
Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir.
2001) (citing 28 U.S.C. §§ 1331, 1332(a)).
12(b)(1), “the plaintiff has the burden of proving jurisdiction in order to survive the
Defendants request the court to dismiss all of plaintiff’s claims against the
individually named defendants and to dismiss plaintiff’s claims under the Federal Tort
Claims Act and 42 U.S.C. § 1981 against the Secretary.
Title VII Claims Against Individual Employees
Defendants first argue that plaintiff’s claims under Title VII against all individually
named defendants should be dismissed pursuant to Rule 12(b)(1) on the grounds that
the Secretary is the only proper defendant for plaintiff’s Title VII claims. The plain
language of Title VII requires that in civil actions based on discrimination in federal
employment, “the head of the department, agency, or unit, as appropriate, shall be the
defendant.”14 Moreover, the Ninth Circuit has specifically ruled that “individual
defendants cannot be held liable for damages under Title VII.”15
While plaintiff concedes that Ninth Circuit case law does not allow claims against
individual employees under Title VII, plaintiff argues that “there exists division in the
circuits with respect to this issue and Ms. Lewis’ case may be the ideal suit to allow the
9th Circuit to reexamine its holding in Miller v. Maxwell’s International regarding standing
to bring suit against individual employees under Title VII.”16 This court is bound to apply
existing federal law and to follow Ninth Circuit precedent, so the court must dismiss
plaintiff’s claims under Title VII against all of the defendants, except Michael Wynne in
his official capacity as Secretary.
42 U.S.C. § 2000e-16(c).
Miller v. Maxwell’s International Inc., 991 F.2d 583, 588 (9th Cir. 1993).
Doc. 33 at 2.
Defendants also contend that the court lacks jurisdiction to hear plaintiff’s tort
claims because plaintiff failed to exhaust her administrative remedies under the Federal
Tort Claims Act (“FTCA”). Plaintiff argues that it is premature for defendants to label her
state tort claims as claims under the FTCA because the Attorney General has not
certified that defendants were acting within the scope of their employment as is required
under the Westfall Act.17 The Westfall Act amended the FTCA “to protect federal
employees from personal liability.”18 The Westfall Act requires the substitution of the
United States as sole defendant in tort actions against federal employees, if the
Attorney General certifies that the defendant employees acted within the scope of
Defendants acknowledge “that certification is the usual first step when torts are
alleged against government employees,” but argue that the fact that plaintiff “named the
individuals and served them with personal service makes it appear that she is suing
them in their individual capacities, rather tha[n] official capacities.”20 Defendants’
argument is unavailing because all of plaintiff’s claims specifically allege that the
defendants were “acting in their individual capacities and as agents of the United States
Citing Brock v. United States,22 defendants next argue that all of plaintiff’s tort
claims should be dismissed because “the alleged torts all arose within the employment
context, within a discrimination claim, and there is no act alleged of a highly personal
28 U.S.C. § 2679.
Saul v. United States, 928 F.2d 829, 832 (9th Cir. 1991).
Id. (citing 28 U.S.C. § 2679(d)).
Doc. 34 at 7.
See doc. 44 (emphasis added).
64 F.3d 1421 (9th Cir. 1995).
nature.”23 In Brock, a federal employee filed an action for negligent supervision against
the government under the FTCA after her supervisor raped and sexually assaulted her.
The government argued that Brock’s FTCA negligence claim was precluded because
Title VII was her exclusive remedy for claims of sexual discrimination. The government
conceded “that if Brock sought state tort remedies against [her supervisor] individually,
Title VII would not bar those claims.”24 The Ninth Circuit held that “because the conduct
alleged in Brock’s complaint was a highly personal violation beyond discrimination, the
complaint states a claim that is separately actionable under the FTCA.”25
The case at bar is more analogous to Otto v. Heckler, where a federal employee
filed a complaint against the federal government and her supervisor. In addition to her
Title VII claims, Otto filed several state tort claims against her manager in his individual
capacity, including assault, invasion of privacy, intentional infliction of emotional
distress, and defamation. The Ninth Circuit held that the applicable rule is that an
“official of the Government, ‘acting within the outer perimeter of his or her line of duty, is
absolutely immune from state or common-law tort liability.’”26 The court reasoned that,
taking Otto’s allegations as true, the Miller immunity was lost because her supervisor
adopted “means beyond the outer perimeter of his authority,” including following her,
defaming her, and harassing her with telephone calls. The court further ruled that “[t]o
ascertain whether [the supervisor] acted within the perimeter of his authority requires
resolution of questions of fact ‘which cannot be resolved at the pleading stage.’”27
Here, the majority of actions alleged in plaintiff’s complaint appear to be actions
taken within the outer perimeter of the individual defendants’ authority. However, in
light of the Ninth Circuit’s ruling in Otto, the court declines to determine whether each
Doc. 34 at 9.
Brock, 64 F.3d at 1423.
Id. at 1424 (citing Arnold v. United States, 816 F.2d 1306, 1311 (9th Cir. 1987); Otto v.
Heckler, 781 F.2d 754, 756-57 (9th Cir.) amended by 802 F.2d 337 (9th Cir. 1986)).
Otto, 781 F.2d at 758 (citing Miller v. De Laune, 602 F.2d 198, 200 (9th Cir. 1979).
Id. (quoting Miller, 602 F.2d at 199).
individually named defendant was acting within the perimeter of his or her authority at
the pleading stage because doing so requires resolution of questions of fact.
Citing Saul v. United States,28 defendants next argue that the court should
dismiss plaintiff’s tort claims because, under the Civil Service Reform Act (“CSRA”),
“federal employees are preempted from bringing tort actions arising from employment
disputes.”29 “The CSRA provides a remedial scheme through which federal employees
can challenge their supervisor’s ‘prohibited personnel practices.’”30 If the conduct that
plaintiff challenges in this action falls within the scope of the CSRA’s “prohibited
personnel practices,” then the CSRA’s administrative procedures are plaintiff’s only
remedy, and the federal court cannot resolve plaintiff’s state law tort claims.31 “The
CSRA defines ‘prohibited personnel practices’ as any ‘personnel action’ taken for an
improper motive by someone who has authority to take personnel actions.”32 “The
CSRA reaches ‘prohibited personnel practices’ by ‘[a]ny employee who has authority to
take, recommend, or approve any personnel action’ ‘with respect to an employee in ... a
covered position in an agency.”33
The court cannot rule on the merits of defendants’ argument that plaintiff’s tort
claims are preempted by the CSRA. The reason is that defendants have failed to
demonstrate in their papers how each of the alleged actions taken by each of the
fourteen individual defendants involved “personnel actions” that were taken by an
employee who has “authority to take, recommend, or approve any personnel action” as
929 F.2d 829 (9th Cir. 1991).
Doc. 32 at 8.
Orsay v. U.S. Dept. of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (citing 5 U.S.C.
Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005) (citing 5 U.S.C. § 2302(b)).
Orsay, 289 F.3d at 1131 (emphasis omitted) (citing 5 U.S.C. § 2302(a)(2(A)(A) & (B).
defined by the CSRA, and that the actions were allegedly taken for reasons prohibited
by the CSRA.34 Plaintiff’s briefing also fails to shed any light on these matters.
For the reasons set out above, the court will deny without prejudice defendants’
motion to dismiss plaintiff’s tort claims.
Section 1981 Claims
Defendants next move to dismiss plaintiff’s claims under 42 U.S.C. § 1981
against all defendants. Claim VI of plaintiff’s complaint alleges that defendants “acted to
deprive Ms. Lewis of equal rights under the law on account of her race” in violation of 42
U.S.C. § 1981.35 Defendants argue that Section 1981 does not provide a cause of
action on the facts of this case because Section 1981 is limited to actions taken “under
color of State law,”36 and this matter involves federal employees acting under federal
Plaintiff responds that while a cause of action does not lie against a federal
agency under Section 1981, “[i]ndividuals can be held liable for violations of § 1981.”38
Citing Black’s Law Dictionary, plaintiff suggests that the term “state” as used in Section
1981(c) refers generally to the “political system of a body of people who are politically
organized.”39 As such, the term “state” may refer “either to body politic of a nation (e.g.,
United States) or to an individual government unit of such nation (e.g., California).”40
The parties have not cited, nor has the court’s research produced, any controlling
case law defining the meaning of “State” as used in the phrase “under color of State
Id. at 1129.
Doc. 44 at 26.
42 U.S.C. § 1981(c).
Doc. 32 at 13.
Doc. 33 at 10.
1443 (8th ed. 2004).
1262 (5th ed. 1979).
BLACK’S LAW DICTIONARY
BLACK’S LAW DICTIONARY
law” in Section 1981. However, the court does not need to resolve that issue in order to
decide the motion at bar.
In Brown v. General Services Administration, the Supreme Court held that Title
VII “provides the exclusive judicial remedy for claims of discrimination in federal
employment.”41 Brown, which involved a federal employee who brought claims of race
discrimination under Title VII and 42 U.S.C. § 1981 against a federal agency, did not
distinguish between a suit against the government or its individual employees. In White
v. General Services Administration, the Ninth Circuit “followed Brown in holding that
Title VII is the sole remedy for a race discrimination claim by a federal employee,” and
specifically addressed the issue of “whether Title VII is the sole judicial remedy available
to a federal employee who alleges racial discrimination and seeks recovery not only
from the federal government but from individual employees.”42 The Ninth Circuit
concluded that the holding in Brown is not limited to actions against the United States,
but also extends to actions against federal officials acting in their individual capacities.43
In both Brown and White, the plaintiffs asserted claims under 42 U.S.C. § 1981 in
addition to their Title VII claims.44
Claim VI of plaintiff’s complaint alleges that defendants “acted to deprive
Ms. Lewis of equal rights under the law on account of her race” in violation of 42 U.S.C.
§ 1981. Plaintiff’s Section 1981 claims arise from the same factual predicate as her
Title VII claims. Because plaintiff’s Section 1981 claims are based on race
discrimination, Title VII is her sole remedy. Accordingly, the court will grant defendants’
motion to dismiss plaintiff’s Section 1981 claims against all defendants.
425 U.S. 820, 835 (1976).
652 F.2d 913, 914 (9th Cir. 1981).
Id. at 916-917.
Brown, 425 U.S. at 823; White, 652 F.2d at 916.
Punitive Damages Claim
Defendants also request the court to strike plaintiff’s claim for punitive damages
“because neither the FTCA nor Title VII authorize the award of punitive damages
against the government.”45 Defendants’ request is premature in light of the fact that
plaintiff asserts state tort claims against the individual defendants and the Attorney
General has not certified that defendants were acting within the scope of their
employment. For the reasons stated above, the court declines to rule on defendants’
motion to dismiss plaintiff’s punitive damages claim at this stage in the litigation.
For the reasons set out above, defendants’ motion to dismiss at docket 32 is
GRANTED IN PART and DENIED IN PART as follows:
(1) Defendants’ motion to dismiss is GRANTED as to plaintiff’s Section
1981 claims against all defendants and as to plaintiff’s Title VII claims
against all defendants except Michael Wynne in his official capacity as
Secretary of the United States Air Force.
(2) Defendants’ motion to dismiss is DENIED WITHOUT PREJUDICE as
to plaintiff’s tort claims.
DATED at Anchorage, Alaska, this 8th day of November 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Doc. 32 at 14.
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