Bowles v. United States of America

Filing 11

ORDER that Defendant's 6 Motion to Dismiss is granted. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 12/13/11.(ESL)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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William Bowles,

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Plaintiff,

No. CV11-1474 PHX DGC

v.
ORDER

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United States of America,

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Defendant. 

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Plaintiff William Bowles filed a complaint on July 27, 2011, alleging that he was

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“defamed and painted in a false light.” Doc. 1 ¶ 21. The complaint also alleges that

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Defendant harassed and retaliated against Plaintiff, and that Defendant intentionally

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inflicted emotional stress on Plaintiff. See id. ¶¶ 7, 20.

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The claims arise out of Plaintiff’s employment with United States Customs and

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Border Protection (“CBP”). Doc. 1. According to the complaint, Plaintiff was at a

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firing range when he observed a co-worker, Robert Martinez, in possession of alcohol.

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Id. ¶ 4. Believing this was against CBP policy, Plaintiff reported the incident to the

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range master, who in turn reported the incident to the supervisor on duty, Mr. Martinez’s

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wife Susan. Id. ¶ 5.

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was not a policy violation, and the alcohol remained on the range. Id. Plaintiff later

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reported this incident to his superior. Id. ¶ 6. When Plaintiff was not contacted for

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investigation as he assumed he would be, Plaintiff reported the incident to the San Diego

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Field Office. Id. A short time after Plaintiff reported the incident to the field office, Mr.

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Martinez was “stripped of his ‘acting’ supervisory role.” Id.

Mrs. Martinez concluded that her husband’s alcohol possession

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Ten days later, CBP sent Plaintiff a letter cataloguing Plaintiff’s “unacceptable”

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behaviors. Id. ¶ 7. Plaintiff maintains that all the behaviors contained in the letter are in

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some way inaccurate, misleading, or untrue. Id. ¶¶ 8–15. Since receiving the letter,

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Plaintiff has been the subject of an investigation with possibly other investigations in

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progress. Id. ¶¶ 16–19. Plaintiff claims that the letter and the investigations are in

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retaliation for Plaintiff’s report of alcohol on the firing range. Id. ¶ 20. Plaintiff further

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claims that these actions amount to harassment that creates a hostile work environment,

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and that they have caused him severe emotional distress. Id.

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Defendant moves to dismiss the complaint under Rules 12(b)(1) and (6). Doc. 6.

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Defendant argues that the Court lacks subject matter jurisdiction because Plaintiff’s

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claims are barred by § 2680(h) of the Federal Tort Claims Act (“FTCA”). Id. at 6. Even

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if the claims are not barred, Defendant argues that Plaintiff has failed to state a claim.

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Id. at 9.

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maintains that the emotional distress, retaliation, and hostile work environment claims

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are not barred and are sufficiently pleaded. Doc. 7 at 7–11. Defendant responds that

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Plaintiff has no claim for either retaliation or hostile work environment because he has

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not alleged that he engaged in a protected activity as required by Title VII. Doc. 10 at 1.

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Defendant also argues that, along with the false light claim, the FTCA bars Plaintiff’s

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emotional distress claim. Id. at 2.

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Plaintiff concedes that his false light claim is barred by § 2680(h), but

The parties have not requested oral argument. For the reasons stated below, the

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Court will grant Defendant’s motion to dismiss.

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I.

Legal Standards.

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A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)

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can be either a facial or factual attack on the allegations. Thornhill Publ’g Co. v. Gen.

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Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). A facial attack occurs when the

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moving party asserts that the allegations contained in the complaint are “insufficient on

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their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d

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1035, 1039 (9th Cir. 2004). In a factual attack, the moving party “disputes the truth of
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the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id.

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If the attack on jurisdiction is facial, the complaint’s factual allegations are taken

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as true and construed in favor of the non-moving party. Jacobson v. Katzer, 609 F.

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Supp. 2d 925, 930 (N.D. Cal. 2009) (citing Fed’n of African Am. Contractors v. City of

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Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)). If the attack is factual, the plaintiff’s

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allegations are not entitled to a presumption of truthfulness, a court may look beyond the

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pleadings to resolve factual disputes, and the plaintiff has the burden of proving

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jurisdiction in fact exists. Safe Air for Everyone, 373 F.3d at 1039.

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the

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well-pleaded factual allegations “‘are taken as true and construed in the light most

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favorable to the nonmoving party.’” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

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2009) (citation omitted). Legal conclusions couched as factual allegations “are not

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entitled to the assumption of truth,” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009), and

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therefore “‘are insufficient to defeat a motion to dismiss for failure to state a claim,’” In

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re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (citation omitted). To avoid a

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Rule 12(b)(6) dismissal, the complaint must plead “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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This plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949

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(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the

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court to infer more than the mere possibility of misconduct, the complaint has alleged—

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but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 1950 (quoting

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Fed. R. Civ. P. 8(a)(2)).

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II.

Analysis.

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Defendant’s 12(b)(1) motion to dismiss is a facial attack because Defendant, for

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purposes of arguing its motion, does not substantially challenge the truth of the

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underlying facts in the complaint. Thus, under both 12(b)(1) and (6), the Court will

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assume the facts contained in the complaint to be true.
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Because Plaintiff concedes that his defamation and false light claims are barred

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by the FTCA, those claims will be dismissed. Thus, the only claims that remain are for

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intentional infliction of emotional distress, and for retaliation and hostile work

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environment under Title VII. The Court will consider each in turn.

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A.

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The FTCA provides a limited waiver of the government’s sovereign immunity for

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certain tort claims. 28 U.S.C. §§ 1346(b), 2671–80; United States v. S.A. Empresa de

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Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 807–08 (1984). Section

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2680(h) provides that the government remains immune from suits for “[a]ny claim

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arising out of . . . libel, slander, misrepresentation, deceit, or interference with contract

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rights.”

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explicitly enumerated in the statute’s exceptions, are barred because they arise out of

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libel and slander. Doc. 7 at 7; Doc 6 at 8–9. The parties disagree whether the emotional

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distress claim is similarly barred.

Intentional Infliction of Emotional Distress.

Both parties agree that the defamation and false light claims, though not

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Courts are split on whether the FTCA bars claims beyond those explicitly listed

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in § 2680(h). Compare Gross v. United States, 676 F.2d 295, 304 (8th Cir. 1982)

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(holding that FTCA does not bar intentional infliction of emotional distress claim

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because it is not enumerated in the statute) and Black v. Sheraton Corp. of Am., 564 F.2d

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531, 539–40 (D.C. Cir. 1977) (holding that invasion of privacy claim was not barred by

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statute) with Metz v. United States, 788 F.2d 1528, 1532–36 (11th Cir. 1986) (holding

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that false light and intentional infliction of emotional distress claims are barred by FTCA

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when the underlying government conduct essential to the plaintiff’s claim constitutes an

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excepted cause of action).

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The Ninth Circuit holds that the FTCA bars claims not listed in the statute. See,

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e.g., Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1206–07 (9th Cir. 1988) (citing Metz, 788

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F.2d at 1535, and holding that negligent infliction of emotional distress claim is barred

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because the underlying government conduct constituted slander). In Sheehan v. United

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States, 896 F.2d 1168 (9th Cir. 1990), the Ninth Circuit explained that Ҥ 2680(h) bars
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suit for claims based on conduct which constitutes one of the excepted torts, and bars

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suit for no other claims.” Id. at 1171 (emphasis added). The government’s conduct,

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then, is the touchstone for determining whether § 2680(h) bars Plaintiff’s emotional

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distress claim.

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constitutes one of the torts listed in § 2680(h), Plaintiff’s claim must be dismissed.

If Defendant’s conduct giving rise to the emotional distress claim

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Plaintiff’s complaint provides a very thorough account of the allegedly tortious

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conduct, and devotes nearly all of its allegations to defamation-type acts. Plaintiff

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alleges that Defendant issued a false and defamatory letter, and that Defendant’s

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employees painted him in a false light. Plaintiff’s distress arises from his damaged

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reputation. Thus, the underlying government actions constitute libel- and slander-type

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actions listed in § 2680(h). See Sheehan, 896 F.2d at 1171 (stating that to allow a

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plaintiff to proceed on a claim not listed in the statute, but that constitutes a cause of

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action listed in the statute, would be to allow a plaintiff to evade the substance of

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§ 2680(h)). The Court must dismiss this claim for lack of subject matter jurisdiction

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under Rule 12(b)(1).

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B.

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Title VII makes it unlawful for “an employer to discriminate against [an

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employee] . . . because he has opposed any practice made an unlawful employment

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practice” by Title VII. 42 U.S.C. § 2000e-3(a). In order to state a Title VII retaliation

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claim, “an employee must show that (1) he engaged in a protected activity; (2) his

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employer subjected him to an adverse employment action; and (3) a causal link exists

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between the protected activity and the adverse action.” Ray v. Henderson, 217 F.3d

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1234, 1240 (9th Cir. 2000) (citing Steiner v. Showboat Operating Co., 25 F.3d 1459,

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1464 (9th Cir.1994)).

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employee complains about or protests conduct that the employee reasonably believes

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constitutes an unlawful employment practice. Trent v. Valley Elec. Ass’n Inc., 41 F.3d

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524, 526 (9th Cir. 1994) (citing E.E.O.C. v. Crown Zellerbach Corp., 720 F.2d 1008,

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1013 (9th Cir. 1983)).

Retaliation.

An employee engages in a “protected activity” when the

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Plaintiff claims that he engaged in a protected activity when he reported the

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alcohol at the firing range. Doc. 7 at 9. But Plaintiff has failed to show that he

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reasonably believed he was complaining about an employment practice made unlawful

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by Title VII. Indeed, it seems hard to imagine how an individual co-worker possessing

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alcohol in violation of an employer’s policy amounts to an employment practice at all,

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let alone one that Title VII makes unlawful. Some examples of protected activities

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include filing an E.E.O.C complaint, Ray, 217 F.3d at 1240, protesting a company policy

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that requires certain races to be treated differently, Moyo v. Gomes, 40 F.3d 982, 985

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(9th Cir. 1994), and complaining to the employee’s general manager about being denied

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accommodations for religious beliefs, E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514

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(9th Cir. 1994), overruled on other grounds by Burrell v. Star Nursery, Inc., 170 F.3d

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951 (9th Cir. 1999). The alcohol possession that Plaintiff complained about is not an

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employment practice prohibited by Title VII. Plaintiff therefore has failed to state a

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claim for retaliation.

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C.

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The Ninth Circuit recognizes a claim for hostile work environment under

Hostile Work Environment.

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Title VII’s anti-retaliation provision.

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however, an employee’s participation in a protected activity is a necessary element of

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this claim. Id. (“Harassment as retaliation for engaging in a protected activity should be

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no different [than harassment based on race or gender]” (emphasis added)). Because

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Plaintiff has not engaged in a protected activity, the complaint does not properly state a

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claim for hostile work environment.

Ray, 217 F.3d at 1245.

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IT IS ORDERED:

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1.

Defendant’s motion to dismiss (Doc. 6) is granted.

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2.

The Clerk is directed to terminate this action.

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Dated this 13th day of December, 2011.

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As with retaliation,