Colgan v. Mabus et al

Filing 17

ORDER: Pursuant to 28 U.S.C. Section 2679(d), the United States of America is substituted as a defendant in place of Defendant Colleen Altman. The Motion to Dismiss filed by Defendants Raymond E. Mabus and Colleen Altman (Doc. 10 ) is granted in par t and denied in part. The Complaint is dismissed as to claim one for discrimination and harassment based on disability pursuant to 29 U.S.C. Section 701, et seq, claim two for retaliation pursuant to 42 U.S.C. Section 2000e, et seq and 29 C.F.R. Sect ion 1630.12, claim three for violation of Federal Tort Claims Act, claim five for violation of "federal, Constitutional and statutory rights [U.S. Constitution, Sections 1, 5, and 9]", claim six for invasion of privacy pursuant to Californi a Civil Code Section 56, et seq., claim seven for intentional infliction of emotional distress, claim eight for negligent infliction of emotional distress, and claim "request for injunctive relief." (Doc. 1 ). The Complaint is not dismissed as to claim four for violation of privacy pursuant to 5 U.S.C.A. Section 552a(b). Signed by Judge William Q. Hayes on 6/6/2012. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ADDIE COLGAN, CASE NO. 11CV2278 WQH(DHB) 12 Plaintiff, vs. RAYMOND E. MABUS, Secretary, Department of the Navy; COLLEEN ALTMAN, an individual; DOES 1-10, Inclusive, ORDER 13 14 15 Defendants. 16 17 HAYES, Judge: 18 The matter before the Court is the Motion to Dismiss filed by Defendants Raymond E. 19 Mabus and Colleen Altman. (ECF No. 10). 20 I. Background 21 On September 30, 2012, Plaintiff Addie Colgan initiated this action by filing a 22 Complaint against Defendants Raymon E. Mabus, Secretary of the Department of the Navy, 23 and Colleen Altman, in her individual capacity. (ECF No. 1). 24 On January 27, 2012, Defendant Mabus filed a Certification of Scope of Employment 25 and a Notice of Substitution of United States as Defendant for all tort claims involving Colleen 26 Altman. (ECF Nos. 10-3, 10-4). 27 On January 27, 2012, Defendants filed a Motion to Dismiss the Complaint. (ECF No. 28 10). On February 24, 2012, Plaintiff filed an opposition to the Motion to Dismiss. (ECF No. -1- 11cv2278 WQH (DHB) 1 11). On March 2, 2012, Defendants filed a reply and filed the Declaration of Jennifer 2 Eichenmuller. (ECF No. 12). On March 6, 2012, Defendants filed a notice of errata and 3 clarification regarding Plaintiff’s administrative tort claim. (ECF No. 14). 4 II. 5 6 Allegations of the Complaint Plaintiff was a civilian employee of the Naval Hospital at Camp Pendleton from May 1997 to December 31, 2009. Plaintiff’s direct supervisor was Colleen Altman. 7 In January 2007, Plaintiff filed an EEOC complaint of discrimination against Defendant 8 Altman which was resolved through mediation. “Thereafter, Defendant Altman engaged in 9 a campaign of harassment and intimidation against Plaintiff Colgan, which continued until 10 Plaintiff’s forced resignation in December 2009....” (ECF No. 1 at ¶ 11). Specific examples 11 of Defendant Altman’s harassing behavior includes: 12 13 14 (a) On many occasions, Defendant Altman refused to permit Plaintiff Colgan to attend Plaintiff’s regularly (sic) medically necessary appointments. (b) On many occasions, Defendant Altman verbally berated Plaintiff Colgan, often in the presence of Plaintiff’s co-workers. 15 16 17 18 19 20 (c) On many occasions, after Defendant Altman provided Plaintiff Colgan with specific directions for a particular work assignment, Defendant Altman chastised Plaintiff for not having performed her job correctly. When Plaintiff said she had simply followed Defendant Altman’s directions, Defendant Altman became angry and gave Plaintiff markedly different instructions for the particular assignments. (d) On many occasions, Defendant Altman made disparaging comments about Plaintiff Colgan to Plaintiff’s coworkers, including comments about Plaintiff’s allegedly unacceptable work performance and alleged excessive absences due to illness. 21 22 23 (e) On many occasions, Defendant Altman told Plaintiff Colgan’s coworkers that she was going to “get rid of” Plaintiff. Id. at ¶ 12. 24 In March 2009, Plaintiff wrote a letter to her Congressman about the discrimination and 25 harassment occurring in her workplace. As a result of the letter to Plaintiff’s Congressman “L. 26 G. Dundas, Captain, Dental Corps, US Navy, purportedly conducted an investigation into 27 Plaintiff’s allegations.” Id. at ¶ 13. However, the investigation did not stop the discrimination 28 and harassment. “Defendant Altman was irate [about Plaintiff’s complaint to her -2- 11cv2278 WQH (DHB) 1 Congressman] and ... decided to cause Plaintiff’s termination or forced retirement.” Id. at ¶ 2 14. “Thereafter ... Defendants Navy, Altman and Does, engaged in a continuous pattern of 3 discriminatory and harassing treatment ....” Id. The discriminatory and harassing treatment 4 by Defendants including following: (a) The unauthorized disclosure of Plaintiff Colgan’s private and confidential information concerning her medical, psychiatric and/or psychological care and treatment obtained at Navy; 5 6 (b) The unauthorized discussion and/or dissemination of Plaintiff’s private confidential medical, psychiatric and/or psychological information to her supervisors and/or coworkers; and 7 8 (c) Subjecting Plaintiff to humiliation and ridicule concerning her medical, psychiatric and/or psychological condition. 9 10 Id. at ¶ 15. “[O]n December 31, 2009 Plaintiff Colgan did in fact quit her employment by 11 deciding to take early retirement rather than be subjected to a hostile, intimidating and 12 offensive work environment.” Id. at ¶ 16. 13 Plaintiff asserts the following claims: (1) discrimination and harassment based on 14 disability [29 U.S.C. § 701, et seq.]; (2) retaliation [42 U.S.C. § 2000e, et seq; 29 C.F.R. § 15 1630.12]; (3) violation of Federal Tort Claims Act (“FTCA”); (4) violation of privacy [5 16 U.S.C.A. § 552a(b)]; (5) violation of federal, Constitutional and statutory rights [U.S. 17 Constitution, Sections 1, 5, and 9]; (6) invasion of privacy [California Civil Code § 56, et seq.]; 18 (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; 19 and (9) request for injunctive relief. 20 III. Discussion 21 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a 22 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil 23 Procedure 8(a) provides: “A pleading that states a claim for relief must contain ... a short and 24 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 25 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable 26 legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica 27 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 28 To sufficiently state a claim for relief and survive a Rule 12(b)(6) motion, a complaint -3- 11cv2278 WQH (DHB) 1 “does not need detailed factual allegations” but the “[f]actual allegations must be enough to 2 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 3 555 (2007). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 4 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 5 of action will not do.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to 6 dismiss, a court must accept as true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 7 556 U.S. 662, 679 (2009). However, a court is not “required to accept as true allegations that 8 are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 9 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “In sum, for a complaint to 10 survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences 11 from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” 12 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted). 13 A. Title VII - First and Second Claims 14 Defendants contend that Plaintiff’s claims for discrimination and harassment under Title 15 VII are time-barred on the grounds that (1) Plaintiff failed to contact an EEOC counselor 16 within 45 days of her termination on December 31, 2009 and (2) Plaintiff failed to initiate this 17 suit within 90 days of receipt of the notice of agency action on June 7, 2010. 18 Plaintiff contends that her Title VII claims are not time barred on the grounds that (1) 19 she contacted the EEOC counselor as soon as she became aware of the 45 day rule and (2) the 20 current complaint should “relate back” to a complaint filed by Plaintiff on September 3, 2010 21 in a separate case which was dismissed without prejudice for failure to serve on January 19, 22 2011. 23 Plaintiff alleges that she was forced to take early retirement from her job on December 24 31, 2009 due to the “hostile, intimidating and offensive work environment.” (ECF No. 1 at ¶ 25 16). Plaintiff alleges: “On or about April 23, 2010, Plaintiff Colgan filed a formal EEO 26 Complaint of Discrimination against all named defendants herein.” Id. at ¶ 17. 27 Title VII makes it unlawful for an employer to “discriminate against any individual with 28 respect to his compensation, terms, conditions, or privileges of employment, because of such -4- 11cv2278 WQH (DHB) 1 individual’s race, color, religion, sex, or national origin” 42 U.S.C. § 2000e-2. When an 2 employee brings suit under Title VII, the employee must exhaust her administrative remedies 3 as a precondition to filing suit in the district court. See Brown v. Gen. Servs Admin., 425 U.S. 4 820, 832 (1976); see also Vinieratos v. United States, 939 F.2d 762, 768-69 (9th Cir. 1991); 5 see also 29 C.F.R. §§1614.101(a), 1614.103(a). In order to exhaust administrative remedies 6 and file an action in district court, an aggrieved employee who alleges employment 7 discrimination must initiate contact with the EEOC within 45 days of the date of the matter 8 alleged to be discriminatory. 29 C.F.R. §§ 1614.105(a)(1), 1614.106. The exhaustion 9 requirement may be equitably tolled. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 10 393 (1982). Plaintiff bears the burden of showing entitlement to equitable tolling. See Scholar 11 v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir.1992). 12 In this case, Plaintiff has failed to allege that she contacted an EEOC counselor within 13 45 days of the employment discrimination. Plaintiff contends that she is entitled to equitable 14 tolling. However, Plaintiff has failed to allege any facts in the Complaint to show that she is 15 entitled to equitable tolling. Plaintiff has failed to allege facts sufficient to show that she 16 exhausted her administrative remedies. 17 Pursuant to 42 U.S.C. § 2000e-16(c), a party wishing to challenge discrimination in 18 employment in district court must “[w]ithin 90 days of receipt of notice of final action by a 19 department, agency, or unit . . . file a civil action as provided in section 706, in which civil 20 action the head of the department, agency, or unit, as appropriate, shall be the defendant.” See 21 also 29 C.F.R. § 1614.407. Federal Rule of Civil Procedure 15 provides: “An amendment to 22 a pleading relates back to the date of the original pleading when ... the amendment asserts a 23 claim or defense that arose out of the conduct, transaction, or occurrence set out ... in the 24 original pleading.” Fed. R. Civ. P. 15. 25 Plaintiff alleges that she received notice of her right to sue from the EEOC on June 7, 26 2010. (ECF No. 1 at ¶ 17). Plaintiff alleges that “ On September 3, 2010 Plaintiff Colgan filed 27 a complaint for damages arising out of the acts and/or omissions alleged herein in the United 28 States District Court for the Southern District of California ..., entitled Colgan v. Mabus -5- 11cv2278 WQH (DHB) 1 (USDC So. Dist. Calif. Case No. 3:10-cv-01843-WQH-POR) (the ‘Original Complaint’).” Id. 2 at ¶ 18. Plaintiff alleges that “On ... January 19, 2011 the District Court dismissed the Original 3 Complaint, without prejudice, pursuant to Rule 4m.” Id. at ¶ 19. Plaintiff alleges that “On 4 information and belief, Plaintiff Colgan alleges that the dismissal of the Original Complaint 5 was due to the inadvertence, mistake or excusable neglect of her attorney, for failure to request 6 additional time to serve Defendants, pursuant to FRCP, Rule 4m.” Id. On September 30, 7 2011, Plaintiff filed the Complaint which initiated this action in Colgan v. Mabus, Case No. 8 11cv2278 WQH (DHB) (S.D. Cal. Sept. 30, 2011). 9 Plaintiff filed a complaint in Colgan v. Mabus,10cv1843 WQH (POR) (S.D. Cal. Sept. 10 3, 2010). Plaintiff has not filed an amended complaint in Colgan v. Mabus,10cv1843 WQH 11 (POR). Plaintiff filed an original complaint initiating this action in Colgan v. Mabus, Case No. 12 11cv2278 WQH (DHB) (S.D. Cal. Sept. 30, 2011). This original complaint is not an 13 amendment to Colgan v. Mabus,10cv1843 WQH (POR) and does not “relate back” to the 14 original complaint filed in Colgan v. Mabus,10cv1843 WQH (POR). This original complaint 15 in Colgan v. Mabus, Case No. 11cv2278 WQH (DHB) was not filed within 90 days of receipt 16 of notice of final action. Accordingly, Plaintiff has failed to allege sufficient facts to show that 17 she initiated this action within 90 days of receipt of notice of final action. Plaintiff has failed 18 to allege facts sufficient to show that her complaint in this case is not barred for failure to file 19 within 90 days of receipt of notice of final action. The Motion to Dismiss claims one and two 20 for violation of Title VII is GRANTED. 21 22 B. Violation of Federal Tort Claims Act - Claim Three Invasion of Privacy Under Cal. Civ. Code section 56 - Claim Six Intentional Infliction of Emotional Distress - Claim Seven Negligent Infliction of Emotional Distress - Claim Eight 23 Defendants contend that “[a]ll of Plaintiff's allegations involve employment actions 24 within the exclusive purview of Title VII, and Plaintiff's FTCA claims are pre-empted by Title 25 VII.” (ECF No. 10-1 at 9). “As Title VII is the exclusive remedy for claims of discrimination 26 and harassment in federal employment, all of Plaintiff’s claims under the FTCA should be 27 dismissed and the allegations must be analyzed under Title VII's statutory scheme.” Id. 28 Plaintiff contends that “[i]t is disingenuous of Defendants to assert that all of the -6- 11cv2278 WQH (DHB) 1 allegations of the Complaint constitute discrimination in employment and are therefore 2 pre-empted by Title VII and subject to dismissal.” (ECF No. 11 at 10-11). Plaintiff contends 3 that “[t]he common allegations are incorporated by reference into the Third, Seventh and Eight 4 claims ... [which] constitute a variety of unlawful conduct, some of which is not prohibited by 5 Title VII, and thus is not pre-empted ....” Id. at 9. Plaintiff contends that her claim of 6 intentional violation of her right to privacy contain some unlawful conduct which is not pre- 7 empted by Title VII. 8 In claim three for violation of the Federal Tort Claims Act, Plaintiff alleges: “Numerous 9 violations of federal law were violated, as set forth herein. Because of these violations of law 10 and Defendants’ negligent and reckless behavior, Plaintiff has suffered damages ....” (ECF No. 11 1 at ¶ 39). Plaintiff alleges: “The actions of Defendants and Does during and after Plaintiff’s 12 employment with Defendant Navy, constituted gross negligence and reckless indifference to 13 Plaintiff’s health and privacy ....” Id. at ¶ 40. Plaintiff alleges: “Defendants and Does’ 14 negligent supervision and training and negligent and reckless failure to prevent the 15 discrimination and harassment of Plaintiff, and the disclosure of Plaintiff’s private medical 16 information to third parties, was a substantial factor and the proximate cause of Plaintiff’s 17 damages.” Id. at ¶ 41. 18 In claims six for invasion of privacy under California Civil code section 56, Plaintiff 19 alleges: “During the time Plaintiff Colgan was employed by Defendant Navy she received 20 medical care and treatment, including psychological care and treatment, from Defendant Navy 21 and Does, and their agents or employees.” (ECF No. 1 at ¶ 53). Plaintiff alleges: “At no time 22 during her employment did Plaintiff Colgan consent, either verbally or in writing, to the 23 disclosure and/or dissemination of her private and confidential medical information, including 24 for her psychological care and treatment, to third persons.” Id. at ¶ 54. Plaintiff alleges: 25 “Defendant Navy and Does, and each of them, did in fact disclose and/or disseminate, or 26 caused to be disclosed and/or disseminated, private and confidential information concerning 27 Plaintiff Colgan’s medical and/or psychological care and treatment.” Id. at ¶56. Plaintiff 28 alleges: “Such disclosure was made to Plaintiff’s supervisors and/or coworkers, without -7- 11cv2278 WQH (DHB) 1 Plaintiff Colgan’s verbal or written consent.” Id. 2 In claim seven for intentional infliction of emotional distress, Plaintiff alleges: “The 3 conduct set forth above was extreme, outrageous and an abuse of the authority and position 4 held by Defendant Navy and Does, and their officers, agents, employees, and those acting on 5 concert.” Id. at ¶ 61. Plaintiff alleges: “These Defendants and Does intended to cause Plaintiff 6 Colgan pain, discomfort, humiliation, mental anguish and severe emotional and physical 7 distress, or acted in reckless disregard of the probability of causing such pain, discomfort, 8 humiliation, mental anguish and distress.” Id. 9 In claim eight for negligent infliction of emotional distress, Plaintiff alleges: “Defendant 10 Navy and Does, and each of them, had a duty to provide a workplace free of harassment and 11 discrimination on the basis of disability.” Id. at ¶ 65. Plaintiff alleges: “These Defendants and 12 Does, and each of them, breached this duty by causing, directing, maintaining and/or 13 condoning a hostile work environment during Plaintiff’s employment.” Id. 14 It is well established that Title VII “provides the exclusive judicial remedy for claims 15 of discrimination in federal employment.” Brown v. Gen. Servs Admin., 425 U.S. 820, 835 16 (1961). The Brown court explained that Title VII is a “detailed statute [that] pre-empts more 17 general remedies.” Id. at 834. (“Permitting such challenges to be brought under the ... statute, 18 where exhaustion is not required, would undermine the strong policy requiring exhaustion....”) 19 (quotation omitted). In Brock v. United States, 64 F.3d 1421 (9th Cir. 1995), the Court of 20 Appeals explained that “[a]llegations of discriminatory failure to promote, retaliation for 21 discrimination complaint, and constructive discharge do not state more than an employment 22 discrimination claim....” Brock, 64 F.3d at 1423-24. However, the Court of Appeals for the 23 Ninth Circuit has permitted a plaintiff to supplement their Title VII claim with state law tort 24 in instances involving “highly offensive” personal violations including rape, sexual assault, 25 and sexual battery. Sommatino v. United States, 255 F.3d 704, 712 (9th Cir. 2001); see Brock, 26 64 F.3d at 1423 (rape); Arnold v. United States, 816 F.2d 1306, 1312 (9th Cir. 1987) (sexual 27 battery); Otto v. Heckler, 781 F.2d 754, 758 (9th Cir. 1986) (sexual assault). In Brock, Arnold, 28 and Otto, the plaintiff suffered unwanted sexual advances including physical intrusions that -8- 11cv2278 WQH (DHB) 1 the court deemed extended beyond typical sexual discrimination. 2 stated: Just as every murder is also a battery, every rape committed in the employment setting is also discrimination based on the employee's sex. In both instances, however, the ability to characterize the ultimate harm suffered as including a lesser offense ( i.e., battery or discrimination) does not change the nature or extent of the ultimate harm. When the harms suffered involve something more than discrimination, the victim can bring a separate claim. 3 4 5 6 7 The Court of Appeals Brock, 64 F.3d at 1423. 8 In this case, Plaintiff has not alleged that she suffered unwanted sexual advances and 9 physical violations including rape, sexual assault, or battery. Plaintiff’s allegations do not rise 10 to the level of “highly offensive” personal violations to allow Plaintiff to supplement her Title 11 VII claim with state law torts. The Motion to Dismiss claim three for “Violation of Federal 12 Tort Claims Act”, claims six for invasion of privacy under California Civil Code section 56, 13 claim seven for intentional infliction of emotional distress, and claim eight for negligent 14 infliction of emotional distress is GRANTED. C. 15 Violation of Plaintiff’s Federal, Constitutional and Statutory Rights [U.S. Constitution, Sections 1, 5 and 9] - Claim Five 16 Defendants contend that Plaintiff’s allegations regarding violation of her federal, 17 Constitutional and statutory rights are vague and conclusory. Defendants contend: “Even if 18 Plaintiff had articulated a viable constitutional claim against any Navy employee, well settled 19 law mandates that constitutional claims are barred in this instance because Title VII is the 20 exclusive, preemptive remedy for federal employment discrimination claims.” (ECF No. 10-1 21 at 10). 22 Plaintiff contends that she incorporated by reference all prior allegations in the 23 Complaint into Plaintiff’s claim for violation of “Federal, Constitutional and Statutory Rights 24 [U.S. Constitution, Sections 1, 5 and 9].” (ECF No. 1 at ¶ 48). Plaintiff contends that some 25 of her allegations “go well beyond employment discrimination” such as her allegation that 26 “[o]n many occasions, Defendant Altman made … comments about Plaintiff’s … alleged 27 excessive absences due to illness.” (ECF No. 11 at 11). 28 Plaintiff alleges: “The persons who acted wrongfully against Plaintiff, as set forth -9- 11cv2278 WQH (DHB) 1 herein, did by their actions or inactions violate Plaintiff’s federal constitutional rights, as set 2 forth pursuant to Sections 1, 5 and 9 of the United States Constitution ....” (ECF No. 1 at ¶ 49). 3 Plaintiff alleges: “The numerous and express provisions of federal law as set forth herein 4 regarding discrimination, harassment, retaliation, and invasion of privacy, were enacted and 5 adopted for the express purpose of protecting persons such as Plaintiff from the very type of 6 damages which she suffered.” Id. at ¶ 50. 7 The Court finds that Plaintiff’s vague and conclusory allegations that “numerous and 8 express provisions of federal law” and sections of the Constitution were violated do not present 9 a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 10 R. Civ. P. 8(a)(2); Balistreri, 901 F.2d at 699. Plaintiff’s incorporation by reference of all of 11 prior allegations in the Complaint does not make her claim less vague and conclusory. 12 Plaintiff has failed to allege sufficient facts to state a claim for “Violation of Plaintiff's Federal, 13 Constitutional and Statutory Rights [U.S. Constitution, Sections 1, 5 and 9].” (ECF No. 1 at 14 ¶ 48). The Motion to Dismiss claim five is GRANTED. 15 D. Violation of Privacy Under 5 U.S.C. § 552a(b) - Claim Four 16 Defendants contend that Plaintiff’s allegations regarding a violation of the Privacy Act 17 are vague on the grounds that “[t]here are no specific facts to indicate when this unauthorized 18 disclosure was made, how it was made, or to whom it was made.” (ECF No. 10-1 at 12). 19 Defendants contend that Plaintiff has failed to allege sufficient facts to show that it acted 20 intentionally or willfully, or that Plaintiff suffered any adverse effects or actual damages 21 resulting from any disclosure. Defendants contend that “[t]o the extent Plaintiff were able to 22 show any Navy employee disclosed medical and/or psychological information, the 23 ‘need-to-know’ exception to the Privacy Act renders such disclosure appropriate in light of 24 Plaintiff's accommodation of disabilities request.” Id. at 13. Defendants contend that “any 25 alleged ‘disclosure’ of information prior to September 30, 2009 is time-barred under the 26 two-year statute of limitations applicable to the statutory scheme.” Id. at 14. 27 Plaintiff contends that she has adequately alleged that Defendants revealed “certain 28 private information pertaining to Plaintiff’s illness (medical condition) and her need for - 10 - 11cv2278 WQH (DHB) 1 accommodation, i.e., absences off for doctor’s appointments.” (ECF No. 11 at 14). Plaintiff 2 states: “While Plaintiff’s supervisors may ‘need to know’ something about her medical 3 condition and need for time-off for medical appointments, there is no need for Plaintiff’s own 4 coworkers to be told of these highly confidential affairs.” Id. at 14-15. Plaintiff states: 5 “Should the Court order, Plaintiff may provide a more definite statement setting forth 6 information necessary to further establish Defendants’ liability under Count Four[ for violation 7 of privacy under 5 U.S.C. § 552a(b)].” Id. at 15. 8 Plaintiff alleges that “[d]uring the time Plaintiff Colgan was employed by Defendant 9 Navy she received medical care and treatment, including psychological care and treatment, 10 from Defendant Navy and Does, and their agents or employees.” (ECF No. 1 at ¶ 53). 11 Plaintiff alleges that “[o]n many occasions, Defendant Altman made disparaging comments 12 about Plaintiff Colgan to Plaintiff’s coworkers, including comments about Plaintiff’s allegedly 13 unacceptable work performance and alleged excessive absences due to illness.” Id. at ¶ 12(d). 14 Plaintiff alleges that she did not consent to disclosure of her medical information. Plaintiff 15 alleges that “Defendant Navy and Does, and each of them, did in fact disclose and/or 16 disseminate, or caused to be disclosed and/or disseminated, private and confidential 17 information concerning Plaintiff Colgan’s medical and/or psychological care and treatment.” 18 Id. at ¶ 56. Plaintiff alleges that “[s]uch disclosure was made to Plaintiff’s supervisors and/or 19 coworkers, without Plaintiff Colgan’s verbal or written consent.” Id. Plaintiff alleges that 20 “[d]uring her employment Defendants and Does, without Plaintiff’s consent, also released and 21 discussed Plaintiff’s private medical, psychiatric and/or psychological condition and treatment 22 with third parties, including Plaintiff’s co-workers, which subjected Plaintiff to ridicule, 23 embarrassment, abuse and harassment.” (ECF No. 1 at ¶ 44). Plaintiff alleges: “Such 24 discussions would not have been possible without the unauthorized disclosure of Plaintiff’s 25 private medical, psychiatric and/or psychological records.” Id. 26 “[T]o prevail on a claim under the [Privacy Act 5 U.S.C. § 552a(b)], a plaintiff must 27 prove that: (1) the government agency failed to uphold its record-keeping obligation; (2) the 28 agency acted intentionally or willfully in failing to execute its responsibility; (3) the failure - 11 - 11cv2278 WQH (DHB) 1 proximately caused an adverse effect on the plaintiff; and (4) the plaintiff sustained actual 2 damages.” Cooper v. FAA, 622 F.3d 1016, 1027 (9th Cir. 2010) (cert. pending) (citing Rose 3 v. United States, 905 F.2d 1257, 1259 (9th Cir. 1990)); see also Speaker v. United States HHS 4 CDC, 623 F.3d 1371, 1381 (11th Cir. 2010). “An action to enforce any liability created under 5 this section may be brought in the district court ... within two years from the date on which the 6 cause of action arises.” 5 U.S.C. § 552a(g)(5). A cause of action “arises” when the plaintiff 7 “knows or has reason to know of the alleged violation.” Rose, 905 F.2d at1259; 5 U.S.C. § 8 552a(g)(1)(C). 9 In this case, Plaintiff has adequately alleged that she sought medical and psychological 10 care and treatment from Defendants. Plaintiff has adequately alleged that Defendants disclosed 11 “private and confidential information concerning Plaintiff Colgan’s medical and/or 12 psychological care and treatment[]” to Plaintiff’s “supervisors and/or coworkers” and “third 13 parties.” Id. at ¶¶ 44, 56. Plaintiff has adequately alleged that the dissemination of her private 14 and confidential medical and psychological information “would not have been possible without 15 the unauthorized disclosure of Plaintiff’s private medical, psychiatric and/or psychological 16 records.” Id. at 44. Plaintiff has adequately alleged that the “harassment and intimidation” by 17 her supervisor was intentional. Id. at ¶ 11. The Motion to Dismiss claim four for violation of 18 privacy under 5 U.S.C. § 552a(b) is DENIED. 19 E. 20 Defendants contend that the injunctive remedies that Plaintiff seeks are included in Title 21 VII. Defendants contend that Title VII provides the exclusive remedy. Plaintiff contends that 22 her claim for injunctive relief can be based on her “Constitutional and privacy rights counts.” 23 (ECF No. 11 at 15). 24 25 26 27 Injunctive Relief - Ninth Claim Plaintiff alleges: Plaintiff seeks the following prospective injunctive relief as a partial for the injuries she sustained as the result of Defendants and Does’ actions or inactions: (a) Reinstatement into her job with Department Navy, for which she is qualified; 28 (b) reinstatement of seniority rights; and - 12 - 11cv2278 WQH (DHB) 1 (c) compensation in the form of back pay, lost benefits, including retirement benefits, and medical expenses. 2 (ECF No. 1 at ¶ 68). Plaintiff also seeks reinstatement in the prayer for relief. 3 “Injunctive relief, like damages, is a remedy requested by the parties, not a separate 4 cause of action.” Cox Communications PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d. 5 1272, 1283 (S.D. Cal. 2002) (dismissing the cause of action for injunctive relief because 6 plaintiff correctly sought an injunction as a remedy in its prayer for relief) (emphasis and 7 citation omitted). 8 The Court finds that Plaintiff’s claim for injunctive relief fails because an injunction is 9 a remedy, not a separate claim. The Motion to Dismiss claim nine for injunctive relief is 10 GRANTED. 11 F. Certification and Substitution 12 Defendants contend that Defendant Altman should be dismissed from the Complaint 13 on the grounds that Altman cannot be individually named in any federal tort or Title VII claim 14 and that Plaintiff has failed to allege a cognizable constitutional claim against Altman. 15 Defendants certify that Altman was acting within the scope of her employment at the time of 16 the incident. 17 The Certification of Scope of Employment, which is signed by an Assistant United 18 States Attorney, states: 19 20 21 22 23 24 25 Pursuant to the provisions of28 U.S.C. § 2679(d), and pursuant to the authority vested in the United States Attorney to make scope of employment certifications under 28 C.F.R § 15.4, a expressly re-delegated to me by the United States Attorney in Civil Policy 10-02, dated July 23, 2010, I hereby certify that I have read the United States District Court, Southern District of California Complaint in the above-entitled action, as well as other documentation. On the basis of information now available with respect to the incident referred to in Plaintiff's Complaint, hereby find and certify that the individually-named Defendant, Colleen Altman, was acting within the scope of her employment as an employee of the United States with regard to the events described in Plaintiff's Complaint. 26 (ECF No. 10-3 at 1). Plaintiff contends that “[dismissal through the ‘course and scope’ 27 certification’] would be inappropriate where valid Constitutional claims suggest individual 28 - 13 - 11cv2278 WQH (DHB) 1 liability is possible.”1 (ECF No. 11 at 17). 2 Plaintiff alleges in the Complaint that “[d]uring all times relevant hereto, Defendant 3 Altman was Plaintiff Colgan’s immediate supervisor” and “each Defendant ... was acting 4 within the course and scope of this agency and/or employment.” (ECF No. 1 at ¶¶ 6, 8). 5 A district court may review the certification of the United States that a federal employee 6 was acting within the scope of his employment. Gutierrez de Martinez v. Lamagno, 515 U.S. 7 417, 436-37 (1995); see also Osborn v. Haley, 549 U.S. 225, 247 (2007) (“[A] complaint’s 8 charge of conduct outside the scope of employment, when contested, warrants immediate 9 judicial investigation. Were it otherwise, a federal employee would be stripped of suit 10 immunity not by what the court finds, but by what the complaint alleges.”) (citation omitted). 11 “Certification by the Attorney General is prima facie evidence that a federal employee was 12 acting in the scope of [his] employment at the time of the incident and is conclusive unless 13 challenged.” Billings v. United States, 57 F.3d 797, 800 (9th Cir. 1995) (citing Green v. Hall, 14 8 F.3d 695, 698 (9th Cir. 1993)). “The party seeking review bears the burden of presenting 15 evidence and disproving the Attorney General’s certification by a preponderance of the 16 evidence.” Billings, 57 F.3d at 800. 17 The district court reviews a scope of employment determination under the principles of 18 respondeat superior of the state in which the tort occurred. See McLachlan v. Bell, 261 F.3d 19 908, 911 (9th Cir. 2001); see also Wilson v. Drake, 87 F.3d 1073, 1076 (9th Cir. 1996). Under 20 California law “the principle is ‘well established’ that ‘an employee’s willful, malicious and 21 even criminal torts may fall within the scope of his or her employment for purposes of 22 respondeat superior, even though the employer has not authorized the employee to commit 23 crimes or intentional torts.’” Xue Lu v. Powell, 621 F.3d 944, 948 (9th Cir. 2010) (quoting 24 Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal. 4th 291, 296, 48 Cal. Rptr. 2d 25 510, 512, 907 P.2d 358, 360 (Cal. 1995)). “A nexus must exist between the employment and 26 the tort if the employer is fairly to be held liable.” Xue Lu, 621 F.3d at 948. “[T]he tort must 27 28 1 As discussed above, Plaintiff has failed to state a claim for violation of the Constitution. - 14 - 11cv2278 WQH (DHB) 1 be ‘generally foreseeable’ or ‘engendered by’ or ‘arise from’ the employment.” Id. (quoting 2 Lisa M., 12 Cal. 4th at 298, 48 Cal. Rptr. 2d at 514, 907 P.2d at 362)). 3 In this case, Plaintiff has not submitted any evidence to show that the certification by 4 the Assistant United States Attorney that Altman was acting within the scope of her 5 employment at the time of the incident is invalid. The Court finds that Plaintiff has failed to 6 meet her burden “of presenting evidence and disproving the Attorney General’s certification 7 by a preponderance of the evidence.” Billings, 57 F.3d at 800; see also Osborn, 549 U.S. at 8 247. 9 IV. Conclusion 10 IT IS HEREBY ORDERED that pursuant to 28 U.S.C. § 2679(d), the United States of 11 America is substituted as a defendant in place of Defendant Colleen Altman. The Motion to 12 Dismiss filed by Defendants Raymond E. Mabus and Colleen Altman (ECF No. 10) is 13 GRANTED in part and DENIED in part. The Complaint is DISMISSED as to claim one for 14 discrimination and harassment based on disability pursuant to 29 U.S.C. § 701, et seq, claim 15 two for retaliation pursuant to 42 U.S.C. § 2000e, et seq and 29 C.F.R. § 1630.12, claim three 16 for violation of Federal Tort Claims Act, claim five for violation of “federal, Constitutional and 17 statutory rights [U.S. Constitution, Sections 1, 5, and 9]”, claim six for invasion of privacy 18 pursuant to California Civil Code § 56, et seq., claim seven for intentional infliction of 19 emotional distress, claim eight for negligent infliction of emotional distress, and claim “request 20 for injunctive relief.” (ECF No. 1). The Complaint is not dismissed as to claim four for 21 violation of privacy pursuant to 5 U.S.C.A. § 552a(b). 22 IT IS SO ORDERED. 23 DATED: June 6, 2012 24 25 WILLIAM Q. HAYES United States District Judge 26 27 28 - 15 - 11cv2278 WQH (DHB)

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