Medlin v. Burns
Filing
35
ORDER granting Defendants 4 Notice/Motion to Substitute Party. United States added. Walter Burns terminated. The Clerk is hereby DIRECTED to substitute the United States as the proper Defendant in this case; denying at this time with permission to refile Defendants' 10 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge Lisa G. Wood on 3/31/3016. (ca)
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ALBERT V. MEDLIN,
Plaintiff,
V.
CV 215-078
WALTER BURNS and SCOTT R.
DONOVAN,
Defendants.
ORDER
Plaintiff Albert Medlin ("Plaintiff") brings suit against
both Walter Burns ("Burns"), his immediate supervisor, and Scott
Donovan, the Division Chief ("Donovan") 1 (collectively,
"Defendants"). The parties work at the Federal Law Enforcement
Training Center ("FLETC"), 2 and they are employees of the federal
government. Plaintiff brings three state law causes of action
against Defendants for: (1) libel; (2) intentional infliction of
Plaintiff originally filed a separate suit against Donovan, case number:
2:15 CV 123. On September 10, 2015, the United States Attorney's Office for
the Southern District of Georgia filed an unopposed Motion to Consolidate
Cases in Donovan's suit. Dkt. Nos. 7, 16. The Court granted this Motion at
the February 19, 2016 Motion Hearing and closed the case. Dkt. No. 18.
Given the consolidation in this case, the Clerk of Court is DIRECTED to
transfer all pending motions from 2:15 CV 123 to the instant matter and
resolve the pending Motions according to this Order.
2
FLETC is an agency located within the United States Department of Homeland
Security, located at 1131 Chapel Crossing Road, Glynco, Georgia 31520. Dkt.
No. 1-1 ("Compi."), ¶ 2.
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emotional distress; and (3) statutory violations. Compl., 191
21-49. Plaintiff seeks punitive and actual damages resulting
from Defendants' alleged torts.
In response to Plaintiff's Complaint, the United States
Attorney's Office for the Southern District of Georgia filed a
Notice of Substitution (Dkt. No. 4) certifying that during the
incident in question, both Defendants acted within the scope of
their authority as supervisors at FLETC. Dkt. No. 4, pp. 1-2.
Defendants then filed a Motion to Dismiss for Lack of Subject
Matter Jurisdiction (Dkt. No. 10). On February 19, 2016, the
Court held an evidentiary hearing on the substitution issue as
well as the Motion to Dismiss. Donovan and Burns each testified
at the hearing.
Now pending before the Court are the following two motions:
(1) Defendants' Notice of Substitution (Dkt. No. 4); and (2)
Defendants' Motion to Dismiss for Lack of Subject Matter
Jurisdiction (Dkt. No. 10). For the reasons set forth below,
the Court GRANTS Defendants' Notice of Substitution (Dkt. No. 4)
and DENIES Defendants' Motion to Dismiss for Lack of Subject
Matter Jurisdiction at this time (Dkt. No. 10).
FACTUAL BACKGROUND
The following facts are taken from Plaintiff's Complaint.
Plaintiff is a senior Firearms Instructor in the Firearms
Division ("FAD") at FLETC. Compl., ¶ 2. Burns is a branch
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chief within the FAD at FLETC, and he is Plaintiff's immediate
supervisor. Id. 191 4, 56. On June 6, 2014, Burns filed a
written "Notice of Proposed Removal," suggesting the removal
(termination) of Plaintiff from employment at FLETC. Id. ¶ 7.
FAD Division Chief Donovan sustained Burns' removal proposal,
terminating Plaintiff from employment at FLETC on August 29,
2014. Id. ¶ 8. Plaintiff filed a timely appeal of both
decisions to the Merit Systems Protection Board ("MSPB"). Id. ¶
9. The MSPB directed the parties to appear for an appeal
hearing in February, 2015. Id. 91 10. Shortly after the hearing
commenced on February 11, 2015, FLETC canceled Donovan's removal
decision, and "the administrative judge adjourned the hearing
sine die".
Id. 91 11. Shortly thereafter, FLETC canceled both
Burns' and Donovan's removal proposals on February 26, 2015.
Id. 191 12-15.
Although FLETC cancelled the removal proposal regarding
Plaintiff, Burns still sought to impose some form of discipline
upon him. Id. 91 16. On March 25, 2015, Burns proposed to
suspend Plaintiff without pay for a period of fourteen calendar
days. Id. ¶ 17. Donovan upheld Burns' proposal on April 17,
2015, electing to extend Plaintiff's disciplinary period for an
additional four days, suspending Plaintiff without pay for
eighteen calendar days. Id. ¶ 18. FLETC attorney Elise Jones
notified Plaintiff that although FLETC would uphold the
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suspension proposal, the disciplinary period would encompass
fourteen calendar days, not the eighteen days recommended by
Donovan. Id. ¶ 19. FLETC allegedly reduced Plaintiff's
suspension because "it unlawfully exceeded the disciplinary
penalty proposed by [Burns'] suspension proposal." Id. ¶ 20.
LEGAL STANDARDS
I. Notice of Substitution
The Westfall Act, 28 U.S.C. § 2679(d), authorizes the
Attorney General of the United States to certify that a federal
employee acted within the scope of his employment with respect
to conduct forming the basis for a tort claim against the
employee. 3 After such certification, the United States is
substituted for the defendant, and the case proceeds under the
Federal Tort claims Act, 28 U.S.C. §§ 1346, 2671 et seq.
("FTCA"). Seneca v. United S. & E. Tribes, 318 F. App'x 741,
744 (11th Cir. 2008) (per curiam) (citing Gutierrez de Martinez
v. Lamagno, 515 U.S. 417, 419-20 (1995)).
"[T]he Attorney General's certification is prima facie
evidence that the employee acted within the scope of his
employment." Id. (quoting Flohr v. Mackovjak, 84 F.3d 386, 390
(11th Cir. 1996)). However, "upon objection by the plaintiff,
the Attorney General's scope-of-employment certification is
reviewable by the district court." Hendrix v. Snow, 170 F.
The Attorney General delegated his certification authority to the United
States Attorney. 28 U.S.C. § 510; 28 C.F.R. § 15.4.
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App'x 68, 82 (11th Cir. 2006) (per curiam) (citing Lamagno, 515
U.S. at 436-37; S.J. & W. Ranch, Inc. v.Lehtinen, 913 F.2d
1538, 1543 (11th Cir. 1990)) . In such a case, "the district
court . . . decide[s] the issue de novo."
Seneca, 318 F. App'x
at 744 (quoting Flohr, 84 F.3d at 390) (alterations in
original); see also Lamagno, 515 U.S. at 434 ("[T]he Attorney
General's certification that a federal employee was acting
within the scope of his employment . . . does not conclusively
establish as correct the substitution of the United States as
defendant in place of the employee.").
II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts have limited jurisdiction. Ishler v.
Internal Revenue, 237 F. App'x 394, 395 (11th Cir. 2007) (citing
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir.
2005)). The plaintiff bears the burden of establishing the
court's subject matter jurisdiction. Id. (citation omitted)
A motion to dismiss brought pursuant to Rule 12(b) (1) of
the Federal Rules of Civil Procedure may challenge the court's
subject matter jurisdiction based on the face of the pleadings
or the substantive facts of the case. Morrison v. Amway Corp.,
323 F.3d 920, 924 (11th Cir. 2003). In a 12(b) (1) facial
attack, the court evaluates whether the complaint, along with
any attached exhibits, "sufficiently allege[s] a basis of
subject matter jurisdiction" and employs standards similar to
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those governing Fed. R. Civ. P. 12(b) (6). Hous. v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013). A
factual attack, on the other hand, "challenge[s] the existence
of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony
and affidavits, are considered." McMaster v. United States, 177
F.3d 936, 940 (11th Cir. 1999) (citing Lawrence v. Dunbar, 919
F.2d 1525, 1529 (11th Cir. 1990)).
DISCUSSION
I. Defendants' Notice of Substitution
Plaintiff argues that the United States should not be
substituted as a party-defendant in this case. Plaintiff sets
forth two arguments in support of his Motion, arguing that
Defendants knowingly and deliberately: (1) "filed false charges
against an employee," which was not within the scope of their
authority as supervisors, dkt. no. 6, p. 13; and (2) issued a
"false, malicious, unprivileged disciplinary proposal that is
libelous per
Se"
and did not further the business of FLETC. Id.
at p. 15. In response, the United States argues that Defendants
both acted within the scope of their authority and in
furtherance of FLETC business when they recommended the removal
of Plaintiff, regardless of whether, as Plaintiff alleges,
Defendants based their removal proposal on "false and allegedly
defamatory" statements. Dkt. No. 9, pp. 4-9.
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The plaintiff bears the burden of showing that the
employee-in-question's conduct was outside the scope of his
employment. Seneca, 318 F. App'x at 744 (quoting Flohr, 84 F.3d
at 390).
"[W]hether an employee's conduct was within the scope
of his employment is governed by the law of the state where the
incident occurred." Hendrix, 170 F. App'x at 82 (quoting Flohr,
84 F.3d at 390) (citations and internal quotation marks
omitted). In this case, Georgia law controls. See Dkt. No. 3,
11 6-7, 43. Under Georgia law,
"[e]very person shall be liable
for torts committed by his . . . [employee] by his command or in
the prosecution and within the scope of his business, whether
the same are committed by negligence or voluntarily." O.C.G.A.
§ 51-2-2.
"Two elements must be present to render [an employer]
liable under respondeat superior: first, the [employee's act]
must be in furtherance of the [employer's] business; and,
second, [the employee] must be acting within the scope of his
[employer's] business." Piedmont Hosp., Inc. v. Palladino, 580
S.E.2d 215, 217 (Ga. 2003) (citations omitted) (alterations
omitted). Thus, "if the employee was authorized to accomplish
the purpose in pursuance of which the tort was committed, the
employer is liable." Chorey, Taylor & Feil, P.C. v. Clark, 539
S.E.2d 139, 140 (Ga. 2000) (citing Franklin Life Ins. Co. v.
Hill, 220 S.E.2d 707, 712 (Ga. Ct. App. 1975)). However, "if
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[an employee] steps aside from his [employer's] business to do
an act entirely disconnected from it, and injury to another
results from the act, the [employee] may be liable, but the
[employer] is not liable." Palladino, 580 S.E.2d at 217.
Both Burns and Donovan acted within the scope of their
authority as Plaintiff's FAD Branch Chief and FAD Division
Chief, respectively. As Branch Chief, Burns was Plaintiff's
direct supervisor, and, in that role, he evaluated Plaintiff's
work. Compl., ¶I 4, 56. In addition, Burns was responsible for
proposing disciplinary action for the instructors under his
supervision, should the need arise. 4 Dkt. No. 30-2, 34:1-25.
Here, Burns received an evidentiary file from the Employee Labor
Relations Branch regarding Plaintiff's conduct in an incident
outside of work, and on the basis of the violations allegedly
committed therein, he determined that Plaintiff required
discipline. See generally Compl., pp. 16-20. As the basis for
Plaintiff's removal proposal, Burns explained that Plaintiff's
involvement in said incident constituted "conduct unbecoming a
To recommend the discipline or termination of an employee, a supervisor
working for the federal government must submit a proposal to the "deciding
official," who then affirms or denies the proposal. Compi., p. 19. If the
deciding official affirms the proposal, the terminated employee may appeal
the decision through any one of the three following avenues: (1) filing "a
grievance under the provisions of the negotiated agreement between the
American Federation of Government Employees, Local 2002 and FLETC"; (2)
appealing the action to the MSPB; or (3) initiating a discrimination
complaint by contacting FLETC's Equal Employment Opportunity Division. Id.
at p. 24.
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federal employee" and recommended his removal to "promote the
efficiency of the service." Id. at pp. 17, 19.
In conformity with FLETC policy, Burns forwarded his
recommendation to Donovan, the FAD Division Chief, who, in
addition to managing approximately one-hundred-forty firearm
agents, was also tasked with reviewing disciplinary proposals
from the eight FAD Branch Chiefs, which included Burns. Dkt.
No. 29, 4:12-6:13. Donovan consented to Burns' removal
proposal, initially agreeing with the proposal to remove
Plaintiff and subsequently signing off on the proposal to
suspend him without pay. Compl., 191 8, 18.
Importantly, Plaintiff does not contend that Defendants
were unauthorized to complete such removal proposals in the
first place. 6 Rather, Plaintiff argues that in performing these
supervisory duties, Defendants relied on "false charges" in
recommending Plaintiff's discipline. Dkt. No. 6, p. 13.
Specifically, Plaintiff maintains that Defendants' reliance on
Donovan elected to extend Burns' proposal to suspend Plaintiff without pay
from fourteen days to eighteen days. Compi. '11 18. FLETC permitted
Plaintiff's suspension without pay, but only for fourteen days, the
suspension originally recoinniended by Burns. Id. at ¶ 17.
6
Given that both Burns and Donovan had the authority to recommend Plaintiff's
removal, any reliance on Roberts v. Duco Dev., Inc., to support Plaintiff's
position is misplaced. 494 S.E.2d 313, 315 (Ga. Ct. App. 1997) . In Roberts,
the supervisor, in knowing violation of his employer's policies, submitted an
affidavit leveling two false charges of theft against plaintiff. Id. The
court in Roberts held that the supervisor exceeded his authority because the
act of completing the affidavit—not lying in the affidavit—directly
contravened the policies established by his employer. Id. This stands in
marked contrast to the instant matter, in which Burns was authorized by FLETC
to complete evaluations and recommend the removal of employees, such as
Plaintiff.
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false charges to support their disciplinary proposal renders
their actions outside the scope of their employment and violates
both "FLETC policy and related federal law that is binding upon
FLETC." Id. at p. 13. But an allegation that Defendants relied
on "false charges" in recommending the discipline of Plaintiff
does not render Defendants' actions outside the scope of
employment. In the present case, Burns and Donovan acted both
within the scope of their authority and in furtherance of FLETC
business. Even if, as Plaintiff alleges, there was some measure
of personal animus motivating Defendants' actions, their conduct
was nevertheless—and at least partially-motivated by a purpose
to serve their employer. Accord Rendrix, 170 F. App'x at 83
(applying Georgia law and upholding the district court's finding
that, even where supervisory employees acted maliciously, their
personnel decisions were in furtherance of, and within the scope
of, the employer's business).
Plaintiff maintains that Defendants did not act in
furtherance of FLETC business when they relied on "malicious"
and "defamatory" information in recommending Plaintiff's
discipline. Dkt. No. 6, P. 17. For support, Plaintiff relies
on Georgia case law standing for the proposition that an
employee can, in certain situations, exceed the scope of his
employer's authority by failing to act in a manner furthering
his employer's business. See, e.g., Piedmont, 276 Ga. at 614;
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Lucas v. Hosp. Auth. of Dougherty Cnty., 388 S.E.2d 871, 874
(Ga. Ct. App. 1989). The Court notes, however, that in the
instant matter, the justification that Defendants gave for
Plaintiff's removal was completely within their authority as
supervisors—they determined that Plaintiff failed to comport
himself in a manner befitting a FLETC officer. Compi., pp. 17,
19.
However, the cases cited by Plaintiffs in which an
employee's self-serving acts were found to exceed the scope of
their authority stand in sharp contrast to the present case. In
Piedmont, 580 S.E.2d at 218, the court found that an employee's
act of performing oral sex on a patient did not further his
employer's business and did not serve a purpose for the
employer-hospital. Similarly in Lucas, 388 S.E.2d at 874, the
court found that an employee's act of killing patients by
administering lethal doses of potassium chloride did not serve a
purpose for the employer-hospital .7 In the present case, the
decisions made by Burns and Donovan may not serve a purpose that
Plaintiff agrees with, but the removal and suspension proposals
were submitted within their authority as FLETC supervisors.
Accord Hendrix, 170 F. App'x at 83. As such, Burns and Donovan
Nor is Roberts, 494 S.E.2d at 315, helpful to the Plaintiff here. In
Roberts, a fast food employee swore out false affidavits. Id. The employer
had an established policy that employees were not to give out affidavits
without express permission. Id. Not surprisingly, the Roberts court found
that by utilizing a procedure specifically prohibited by the employer, the
employee was not furthering his employer's business.
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did not exceed the scope of their authority when they completed
a removal proposal—which was fully within their authority as
supervisors—even though they may have relied on allegedly "false
charges" or "malicious" information in reaching their decision.
When a supervisor recommends the removal of an employee,
the employee is likely to challenge that unfavorable action for
a number of reasons, including that their supervisors relied on
false information or that the information in the report was
defamatory. But, case law.is clear: the relevant inquiry is
whether "the employee was authorized to accomplish the purpose
in pursuance of which the tort was committed." Chorey, 529
S.E.2d at 140. Here, both Defendants were authorized to
evaluate and propose the discipline of Plaintiff, regardless of
whether or not some personal animus may have also motivated them
to recommend Plaintiff's discipline. Accordingly, Defendants'
Notice of Substitution is hereby GRANTED.
II. Defendants' Motion to Dismiss
Defendants set forth two arguments in the Motion to Dismiss
for lack of subject matter jurisdiction: (1) that Plaintiff's
tort claims of libel and intentional infliction of emotional
distress are barred by sovereign immunity; and (2) that
Plaintiff's statutory violations fail as a matter of law because
they are preempted by the Civil Service Reform Act. Dkt. No.
10, pp. 4-8. In response to Defendants' Motion, Plaintiff asked
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the Court to dismiss the Motion as premature, given that the
Court had yet to rule upon the Notice of Substitution. Dkt. No.
23, p. 4.
Plaintiff concedes that if he loses the substitution
argument, his libel and intentional infliction of emotional
distress claims are barred by sovereign immunity. Id.
Plaintiff also withdrew his claims of statutory violations. Id.
at pp. 6-7. Given that the Court is granting Defendants' Notice
of Substitution, Defendants' Motion to Dismiss (Dkt. No. 10) is
hereby DENIED at this time. Defendants are permitted to refile
a Motion to Dismiss within ten days that takes into account the
Court's grant of substitution.
CONCLUS ION
The United States is the proper defendant in this action.
Accordingly, Defendants' Notice of Substitution (Dkt. No. 4) is
hereby GRANTED.
Defendants' Motion to Dismiss (Dkt. No. 10) is
DENIED AT THIS TIME with permission to ref ile. The Clerk of the
Court is hereby DIRECTED to substitute the United States as the
proper Defendant in this case.
SO ORDERED, this 311T day of March, 2016.
LISA GODBEY tooD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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