Cho v. Oquendo et al

Filing 39

MEMORANDUM AND ORDER granting 37 the United States' Motion to Dismiss for Lack of Jurisdiction; granting 18 the Port Authority's Motion to Dismiss. For the reasons discussed in the attached Memorandum and Order, the Court grants the Po rt Authority's and the United States' motions to dismiss and dismisses Plaintiff's claims against all Defendants except Oquendo. The Court grants Plaintiff leave to amend the Complaint within thirty days, as further explained in the Memorandum and Order. Ordered by Judge Margo K. Brodie on 8/2/2017. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------WOO HEE CHO,
Plaintiff,
v.

MEMORANDUM & ORDER
16-CV-4811 (MKB)

MAXIE OQUENDO, LAGUARDIA AIRPORT,
PORT AUTHORITY OF NEW YORK AND NEW
JERSEY, TRANSPORTATION SECURITY
ADMINISTRATION and THE UNITED STATES
OF AMERICA,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Woo Hee Cho commenced the above-captioned action against Defendants
Maxie Oquendo, LaGuardia Airport, the Port Authority of New York and New Jersey (the “Port
Authority”), the Transportation Security Administration (the “TSA”), and the United States of
America on August 26, 2016, based on a TSA agent’s sexual assault of Plaintiff at LaGuardia
Airport in August of 2015. (Compl., Docket Entry No. 1.) Plaintiff brings claims for sexual
assault and battery, intentional infliction of emotional distress, false imprisonment and Bivens
relief 1 under the Fourth Amendment against Oquendo 2; for negligent hiring and supervision
against the Port Authority and LaGuardia Airport; and for negligence against TSA and

1

(1971).
2

See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

Oquendo did not appear in the action. On January 19, 2017, Plaintiff requested a
certificate of default as to Oquendo, and on January 23, 2017, the Clerk of Court entered an order
of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (See Docket Entry
Nos. 14, 15.) Plaintiff has not moved for a default judgment against Oquendo.

supervisory liability and negligent training and supervision against the United States, pursuant to
the Federal Tort Claims Act (the “FTCA”). (Id. ¶¶ 49–92.)
On February 3, 2017, the Port Authority moved to dismiss the action against it and
LaGuardia Airport pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Port
Authority Mot. to Dismiss (“Port Authority Mot.”), Docket Entry No. 18; Decl. of Allen Acosta
in Supp. of Port Authority Mot. (“Acosta Decl.”), Docket Entry No. 19; Port Authority Mem. in
Supp. of Port Authority Mot. (“Port Authority Mem.”), Docket Entry No. 20.) On July 14, 2017,
the United States moved to dismiss the action against it and TSA pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. (United States Mot. to Dismiss (“United States Mot.”), Docket
Entry No. 37; United States Mem. in Supp. of United States Mot. (“United States Mem.”),
Docket Entry No. 37-1; Decl. of Jared M. Addorisio in Supp. of United States Mot. (“Addorisio
Decl.”), Docket Entry No. 36-2.)
For the reasons set forth below, the Court grants the Port Authority’s and the United
States’ motions to dismiss for lack of subject matter jurisdiction, dismisses the Complaint against
all Defendants except Oquendo and grants Plaintiff leave to amend her claims against the United
States.
I.

Background
The Court assumes the truth of the factual allegations in the Complaint for the purposes

of this Memorandum and Order. “On or about August 27, 2015,” Plaintiff, a Korean college
student who was then temporarily enrolled at an English language school in Utah, arrived at
LaGuardia Airport on an inbound flight from Salt Lake City. (Compl. ¶¶ 15–16.) As Plaintiff
was walking out of the airplane gate, Oquendo, a TSA officer, approached Plaintiff and told her
that he needed to scan her body and luggage. (Id. ¶ 17.) Oquendo directed Plaintiff to follow

2

him up an escalator and motioned for Plaintiff to enter a men’s bathroom. (Id. ¶ 18.) Plaintiff
was confused, but acquiesced after requesting that a female TSA employee screen her instead.
(Id. ¶ 19.) Oquendo refused, and ordered Plaintiff to unzip and take off her shorts and her t-shirt.
(Id. ¶¶ 19–20.) He then fondled Plaintiff’s breasts “and other areas of her body, both over and
under her clothing.” (Id. ¶ 20.) Plaintiff was “extremely nervous, terrified and uncomfortable
but felt that she was not free to refuse Oquendo’s demands” because he was in TSA uniform and
she was not aware of TSA procedures. (Id. ¶ 22.) After the incident, Oquendo escorted Plaintiff
toward an elevator and told her to enter it. (Id. ¶ 23.) He pressed the buttons to a lower floor
and when the doors closed, with Plaintiff inside the elevator, Oquendo ran off in another
direction. (Id.) Plaintiff found a TSA officer and reported what had happened, and that TSA
officer told Plaintiff that she should report the incident to Port Authority Police Department
because the incident violated TSA protocol. (Id. ¶¶ 24–25.) On the same day, Plaintiff reported
the incident to Detective Sergeant Barbara Heim in the Criminal Investigations Bureau of the
Port Authority Police Department. (Id. ¶ 26; Affidavit of Detective Sergeant Barbara Heim
(“Heim Aff.”) ¶¶ 5–6, Docket Entry No. 19-2.) The next day, Plaintiff was transported back to
Port Authority Headquarters and identified Oquendo from a line-up. (Compl. ¶ 27.)
Within days of the incident, Oquendo was fired, arrested by the NYPD and arraigned on
charges of sexual abuse, official misconduct, harassment and unlawful imprisonment. (Id. ¶ 29.)
On December 7, 2016, Oquendo entered a conditional plea of guilty for attempted official
misconduct, official misconduct and sexual abuse in the third degree. (See United States Mem. 2
(referring the Court to the criminal matter against Oquendo in New York Criminal Court,
Queens County).)

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II. Discussion
a.

Standard of review

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) when the court “lacks the statutory or constitutional power to adjudicate
it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir.
2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder,
718 F.3d 48, 50 (2d Cir. 2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005)); see also Chau v. S.E.C., 665 F. App’x 67, 70 (2d Cir. 2016). The
plaintiff has the burden to prove that subject matter jurisdiction exists, and in evaluating whether
the plaintiff has met that burden, “‘[t]he court must take all facts alleged in the complaint as true
and draw all reasonable inferences in favor of plaintiff,’ but ‘jurisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings inferences favorable
to the party asserting it.’” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008)
(citations omitted), aff'd, 561 U.S. 247 (2010). A court may consider matters outside of the
pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712
F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).
b.

The Court lacks subject matter jurisdiction over Plaintiff’s claims against the
Port Authority

The Port Authority argues that it is immune from Plaintiff’s suit because Plaintiff failed
to commence her action within one year of the date on which the cause of action accrued. 3 (Port
3

The Port Authority further argues that LaGuardia Airport is operated by the Port
Authority under a lease with the City of New York, and, as such, “does not exist as a distinct
legal entity and therefore is not a properly named party.” (Port Authority Mem. 1 n.1.) Plaintiff
does not address this argument, and the Court accordingly dismisses LaGuardia Airport from the
action. See Abrahams v. Young & Rubicam Inc., 79 F.3d 234, 237 n.2 (2d Cir. 1996) (“Given
[the plaintiff’s] representations to the district court . . . and the failure to make pertinent

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Authority Mem. 3–4.) Plaintiff argues that she timely filed suit and, even if she did not, she is
entitled to equitable tolling because the Port Authority “tricked” her into believing the claim
accrued on August 27, 2015 rather than August 25, 2015. (Pl. Mem. in Opp’n to Port Authority
Mot. (“Pl. Opp’n to Port Authority Mot.”) 5, Docket Entry No. 27.)
The Port Authority is a “bi-state agency created by a compact between New York and
New Jersey,” and it “enjoyed sovereign immunity until 1951, when New York and New Jersey
consented to suits against it in limited circumstances.” Caceres v. Port Auth. of N.Y. & N.J., 631
F.3d 620, 624 (2d Cir. 2011) (citing Bunk v. Port Auth. of N.Y. & N.J., 144 N.Y. 176 (1996)).
The Port Authority’s statutory immunity was waived by identical New York and New Jersey
statutes that “required a sixty-day notice of claim and commencement of suit within one year
from the date of accrual of the cause of action.” See id.; N.Y. Unconsol. Law § 7107 (“section
7107”). “These requirements are jurisdictional,” and thus, the failure to satisfy them “will result
in withdrawal of [the] defendant’s consent to suit and compels the dismissal of the action for lack
of subject matter jurisdiction.” Caceres, 631 F.3d at 624–25 (citations omitted); Aegis Ins.
Servs., Inc. v. Port Auth. of N.Y. & N.J., 435 F. App’x 18, 25 (2d Cir. 2011) (“Sections 7107 and
7108 [of the New York Unconsolidated Law] constitute jurisdictional prerequisites to a suit
against the Port Authority, and failure to comply with them compels dismissal of the action for
lack of subject matter jurisdiction.”).
Rule 6(a) of the Federal Rules of Civil Procedure governs the computation of any period
of time “specified in [the Federal Rules], in any local rule or court order, or in any statute that
does not specify a method of computing time.” Fed. R. Civ. P. 6(a) (emphasis added). Rule

arguments here, we deem the claims waived.”); Innov. Ventures, LLC v. Ultimate One
Distributing Corp., No. 12-CV-5354, 2014 WL 1311979, at *9 (E.D.N.Y. Mar. 28, 2014) (“A
plaintiff effectively concedes a defendant’s arguments by his failure to respond to them.”).
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6(a)(1) provides that “[w]hen the period is stated in days or a longer unit of time,” the court
should “exclude the day of the event that triggers the period” and “include the last day of the
period.” Id. at 6(a)(1). The Second Circuit has further held that “when a statute of limitations is
measured in years, the last day for instituting the action is the anniversary date of the start of the
limitations period.” Mickens v. United States, 148 F.3d 145, 148 (2d Cir. 1998) (citing Day v.
Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990), as amended on reh’g (Aug. 29, 1990)); see also
Thomas v. Harris, No. 10-CV-4025, 2016 WL 4702443, at *4 (S.D.N.Y. Sept. 6, 2016) (quoting
Day, 909 F.2d at 79); Williams v. Zuk, No. 09-CV-789, 2009 WL 909520, at *2 (N.D.N.Y. Apr.
3, 2009) (citing Day, 909 F.2d at 79).
The parties do not dispute that Plaintiff’s claim accrued on August 25, 2015 rather than
August 27, 2015, as the Complaint states, 4 or that Rule 6(a) prescribes the method of computing
time in this action. See Day, 909 F.2d at 78 (“[O]nly the length of the limitation is governed by
state law.”); Fed. R. Civ. P. 6(a) (governing the computation of time for “any statute that does
not specify a method of computing time”). Nor do the parties dispute that section 7107 waives
the Port Authority’s immunity from damages suits only where the lawsuit was “commenced
within one year after the cause of action . . . accrued.” N.Y. Unconsol. Law § 7107.

4

The Port Authority annexes to its papers the incident report that Plaintiff completed on
August 27, 2015, stating that the event occurred two days prior, on August 25, 2015. (See
Plaintiff Incident Report, annexed to Heim Aff. as Ex. A.) Det. Sgt. Heim spoke with Plaintiff
on August 25, 2015, when Plaintiff reported the incident at LaGuardia Airport, (see Heim Aff. ¶¶
24–25), and, on August 27, 2015, the Plaintiff made her sworn written statement in English
describing the incident before Det. Sgt. Heim and Detective David Narvaez, (see Aff. of David
Narvaez (“Narvaez Aff.”), Docket Entry No. 19-3). Both Det. Sgt. Heim and Det. Narvaez state
that they witnessed Plaintiff review the contents of the form, that Det. Sgt. Heim explained the
form and made sure that Plaintiff understood the meaning of it, and that Plaintiff described the
incident as having taken place on August 25, 2015 and wrote the date in her own handwriting.
(Heim Aff. ¶ 8; Narvaez Aff. ¶ 8.)

6

However, because the limitations period in section 7107 is expressed in years, “the last
day for instituting [Plaintiff’s] action [was] the anniversary date of the start of the limitations
period,” or August 25, 2016. See Mickens, 148 F.3d at 148. Plaintiff commenced this action on
August 26, 2016 — one year and one day after the cause of action accrued, (see Compl.) — and
has therefore failed to comply with a condition precedent to suit against the Port Authority.
Although Plaintiff argues that she is entitled to equitable tolling as a result of the Port
Authority’s allegedly improper conduct in handling the claim, 5 timing limitations that are
jurisdictional in nature can “not be excused based on equitable factors.” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 433 (2011); see also Franklin v. McHugh, 804 F.3d 627,
629 (2d Cir. 2015) (explaining that, “[l]ike other jurisdictional requirements, the timely filing

5

Plaintiff argues that until filing the request for a pre-motion conference in anticipation
of its motion, the Port Authority “was sitting on documents that it knew set forth a different
incident date” — namely, August 25, 2015. (Pl. Opp’n to Port Authority Mot. 6.) Plaintiff
argues that she filed a Freedom of Information Act request with the Port Authority that the Port
Authority ignored, and “there was no possible way that the undersigned could have known that
the incident actually took place on August 25, 2015, since the Port Authority was withholding all
documents which would have alerted us to this fact.” (Id. at 6–7.)
Although the law is clear that the Court is constrained and cannot provide equitable
tolling for what Plaintiff contends is the Port Authority’s trickery, the Court also notes that it was
Plaintiff, and not the Port Authority, who initially identified the date of the incident as August
25, 2015 in her Incident Report, and it was Plaintiff’s counsel, and not the Port Authority, who
identified the date as August 27, 2015 in Plaintiff’s notice of claim to the Port Authority. (See
Plaintiff Incident Report; Notice of Claim dated Sept. 15, 2015, annexed to Compl. as Ex. A
(“The claim accrued on August 27, 2015.”).) Thereafter, the Port Authority did refer to the “date
of incident” as August 27, 2015, but there are no facts to support Plaintiff’s claim that the Port
Authority willfully withheld information that was not available to Plaintiff.
Indeed, the Port Authority provides an affidavit from a claims representative, Carleen
Hodge, who states that on December 4, 2015, she received paperwork from the Port Authority’s
Public Safety Department concerning the criminal complaint that Plaintiff made against
Oquendo, as well as the supporting documents. (Affidavit of Carleen Hodge (“Hodge Aff.”) ¶ 9,
Docket Entry No. 29-1.) Upon reviewing the documents, Hodge states that she determined that
the incident actually took place on August 25, 2015, and she contacted Plaintiff’s counsel by
telephone that day and left a voice message informing him that the notice of claim needed to be
amended to reflect the correct date of the incident. (Id. ¶¶ 9–10.) Hodge did not receive any
further correspondence or a return telephone call from Plaintiff’s counsel. (Id. ¶ 10.)
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mandate [of the Federal Rules of Appellate Procedure] is not subject to judicially created
equitable exceptions.”). Accordingly, because the Court cannot waive or otherwise exercise
equitable powers in connection with jurisdictional requirements, and because section 7107’s
requirements are jurisdictional, see Caceres, 631 F.3d at 624–25, the Court lacks subject matter
jurisdiction over Plaintiff’s claim against the Port Authority. The Court, therefore, dismisses
Plaintiff’s claims against the Port Authority for negligent hiring, retention and supervision.
c.

The Court lacks subject matter jurisdiction over Plaintiff’s claims against the
TSA

The United States argues that, to the extent Plaintiff intended to bring a claim against the
TSA, the Court lacks jurisdiction over the claim because the FTCA does not provide Plaintiff
with a cause of action against the TSA and Plaintiff has not identified any other statutory
predicate for a claim against the TSA. (United States Mem. 5–6.) Plaintiff argues that the FTCA
provides a vehicle for claims against the United States, and because the TSA is part of the United
States government, Plaintiff’s claim should proceed. (Pl. Mem. in Opp’n to United States Mot.
(“Pl. Opp’n to United States Mot.”) 4–5, Docket Entry No. 36.)
The United States is generally immune from suit. See United States v. Bormes, 568
U.S. 6, 9 (2012) (“Sovereign immunity shields the United States from suit absent a consent to be
sued that is ‘unequivocally expressed.’” (quoting United States v. Nordic Vill., Inc., 503 U.S. 30,
33–34 (1992))). Under the FTCA, “Congress waived the United States’ sovereign immunity for
claims arising out of torts committed by federal employees while acting within the scope of their
employment.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217–18 (2008). However, the
FTCA precludes tort suits against federal agencies. See 28 U.S.C. § 2679(a) (“The authority of
any federal agency to . . . be sued in its own name shall not be construed to authorize suits
against such federal agency on claims which are cognizable under [the FTCA].”) As a result,

8

“[t]he only proper institutional defendant in such an action is the United States.” Rivera v.
United States, 928 F.2d 592, 609 (2d Cir. 1991); see Safonova v. United States, No. 15-CV-5580,
2017 WL 1030708, at *3 (E.D.N.Y. Mar. 15, 2017) (quoting Rivera, 928 F.2d at 609);
Rambarrat ex rel. Rambarrat v. United States, 347 F. Supp. 2d 6, 8 (S.D.N.Y. 2004) (“Section
2679(b)(1) provides Government agencies and employees with absolute immunity against
common-law tort claims by requiring that the United States be substituted as a defendant in their
stead.”); Stewart v. I.R.S., 157 F.R.D. 153, 155 (E.D.N.Y. 1994) (substituting the United States
for the IRS as a defendant in the action because “the FTCA precludes tort suits against federal
agencies” and “the only proper federal institutional defendant in such an action is the United
States” (citing Rivera, 928 F.2d at 609)).
The TSA is a component of the Department of Homeland Security, a federal agency, 6 see
6 U.S.C. § 203(2), and therefore, Plaintiff’s claim against the TSA is not cognizable under the
FTCA. Because Plaintiff names the United States as a Defendant in this action and the United

6

Under the FTCA, the term “federal agency” includes “the executive departments, the
judicial and legislative branches, the military departments, independent establishments of the
United States, and corporations primarily acting as instrumentalities or agencies of the United
States.” 28 U.S.C. § 2671. The Department of Homeland Security is an executive department,
and the TSA is listed among several other “operational and support components” that “make up”
the Department of Homeland Security. See “Operational and Support Components,” available at
https://www.dhs.gov/operational-and-support-components (last accessed Aug. 1, 2017); see also
Qian Jin Lin v. Anderson, No. 12-CV-451, 2013 WL 3776249, at *3 (S.D.N.Y. July 18, 2013)
(substituting the United States as the proper defendant in an action against the Department of
Homeland Security and Customs and Border Protection); Ibrahim v. United States, 868 F. Supp.
2d 27, 29 n.1 (E.D.N.Y. 2012) (dismissing the plaintiff’s claims against the Department of
Homeland Security and Customs and Border Protection because “[t]he FTCA expressly provides
that only the United States may be held liable for torts committed by a federal agency, and not
the agency itself”).

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States is “the only proper institutional defendant” in an FTCA action, see Rivera, 928 F.2d at
609, the Court dismisses Plaintiff’s claim against the TSA brought under the FTCA. 7
d.

The Court lacks subject matter jurisdiction over Plaintiff’s claims against the
United States

The United States argues that because Oquendo was not acting within the scope of his
employment, Plaintiff’s claims against the United States for supervisory liability fall within an
exception to the FTCA’s waiver of sovereign immunity. (United States Mem. 8.) In the
alternative, the United States argues that the FTCA precludes the Court’s jurisdiction over
Plaintiff’s claims against the United States arising from Oquendo’s intentional torts of assault,
battery and wrongful detention and imprisonment as well as the Court’s jurisdiction over
Plaintiff’s claims for the TSA’s failure to properly train and supervise Oquendo. (Id. at 12–16.)
Plaintiff argues that the Court cannot determine whether Oquendo acted within the scope of his
employment without permitting the parties to engage in discovery, and that her other claims
against the United States under the FTCA do not merely arise from Oquendo’s conduct but stem
from independent negligent conduct of other TSA employees who, “upon information and belief
. . . were present and/or standing watch.” (Pl. Opp’n to United States Mot. 8–10.)
“The FTCA waives the government’s sovereign immunity in actions for money damages
arising out of injury, loss of property, personal injury or death caused by the ‘negligent or
7

To the extent that Plaintiff seeks to bring a state-law negligence claim against the TSA
for “establishing, promulgating, and enforcing” unspecified “policies and practices” and “failing
to properly train and/or supervise” Oquendo, (see Compl. ¶¶ 79–81), the Court lacks subject
matter jurisdiction over the claim because Plaintiff has not identified any statute other than the
FTCA, which precludes actions against federal agencies, that would authorize a claim against the
TSA for state-law negligence. See Diaz v. United States, 517 F.3d 608, 611 (2d Cir. 2008)
(“[T]he principle of sovereign immunity . . . absent a waiver, shields the federal government and
its agencies from suit.”); Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996) (explaining that
sovereign immunity is “jurisdictional in nature,” and, therefore, where a waiver of sovereign
immunity is not explicit, an action against the sovereign defendant should be dismissed for lack
of jurisdiction).
10

wrongful’ act or omission of a government employee ‘while acting within the scope of his office
or employment . . . .’” Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016). The FTCA’s
“scope of employment” requirement is interpreted “in accordance with the respondeat superior
law of the jurisdiction where the tort occurred.” Id. (citing Hamm v. United States, 483 F.3d
135, 138 (2d Cir. 2007)). In New York, an employee acts within the scope of his employment
when “(1) the employer is, or could be, exercising some control, directly or indirectly, over the
employee’s activities, and (2) the employee is doing something in furtherance of the duties he
owes to his employer.” Id. (alterations and internal quotation marks omitted) (citing Hamm, 483
F.3d at 138).
Although the ultimate determination of whether an employee was acting within the scope
of employment at a particular time typically involves a fact-intensive inquiry that assesses the
relationship between the employee and employer in practice and the extent to which the act
departed from normal methods of job performance, the Second Circuit has recognized that the
determination “can be made as a matter of law in some instances.” See Girden v. Sandals Int’l,
262 F.3d 195, 205 (2d Cir. 2001) (citation omitted); see also Romero v. City of New York, 839 F.
Supp. 2d 588, 629 (E.D.N.Y. 2012) (making the scope-of-employment determination as a matter
of law in the context of a sexual harassment claim).
This is because “in order for liability to attach, the tortious act must have in some way
been effectuated to advance the employer’s interest,” Tchatat v. City of New York, 14-CV-2385,
2015 WL 5091197, at *17 (S.D.N.Y. Aug. 28, 2015) (quoting Adams v. N.Y.C. Trans. Auth., 626
N.Y.S.2d 455, 460 (App. Div. 1995), aff’d, 88 N.Y.2d 116 (1996)), and “it is well settled” that
unwelcome sexual conduct “is motivated solely by individual desires and serves no purpose of
the employer,” Higgins v. Metro–N. R.R. Co., 318 F.3d 422, 426 (2d Cir. 2003); see also Swarna

11

v. Al-Awadi, 622 F.3d 123, 144 (2d Cir. 2010) (explaining that an employer “is not liable for
torts committed by the employee for personal motives unrelated to the furtherance of the
employer’s business” (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995))); Bello
v. United States, 93 F. App’x 288, 291 (2d Cir. 2004) (“New York law holds that [an employee]
does not act within the scope of his employment when he acts in tortious conduct for personal
reasons separate and distinct from the interests of his employer, particularly when the conduct
involves acts not commonly done by those in his position.
“New York courts consistently have held that sexual misconduct and related tortious
behavior arise from personal motives and do not further an employer’s business, even when
committed within the employment context.” Swarna, 622 F.3d at 144 (quoting Ross v. Mitsui
Fudosan, Inc., 2 F. Supp. 2d 522, 531 (S.D.N.Y. 1998)). “Thus, for example, New York courts
have rejected respondeat superior claims that a church was liable for its priest’s sexual assault of
a child, that a hospital was liable for its attendant’s sexual assault o[f] a patient, that a school was
liable for its volunteer-teacher’s molestation of a student, and that [a] mall was liable for its
security guard’s rape of a girl in the mall security office.” Id. (citations omitted) (collecting
cases); see also Zeranti v. United States, 167 F. Supp. 3d 465, 469 (W.D.N.Y. 2016) (collecting
cases holding that, as a matter of law, sexual assaults are not in furtherance of an employer’s
business); N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 24, 251 (2002) (“A sexual assault . . . is not in
furtherance of [an employer’s] business and is a clear departure from the scope of employment,
having been committed for wholly personal motives.”).
Here, Oquendo’s conduct did not occur in the course of his employment as a TSA
screening officer. As Plaintiff expressly alleges, Oquendo approached Plaintiff “in the area of
the Airport terminal that does not require passengers to be screened,” which was nowhere “near

12

any designated security checkpoint area in which passenger screening is or was permitted,” and
where Oquendo was not “not authorized to conduct secondary pat-downs.” (Compl. ¶¶ 17, 21.)
Oquendo “intentionally and deplorably abused his position” by directing Plaintiff to a bathroom
and sexually assaulting her. (Id. ¶¶ 1, 18–20.) Plaintiff does not allege that Oquendo’s conduct
was in furtherance of his position as a TSA screener, and the Court need not permit discovery
into whether his sexual assault of Plaintiff — conduct of a nature that New York courts routinely
find outside the scope of employment — was within the scope of his employment for TSA. See
Swarna, 622 F.3d at 144.
To the extent that Plaintiff attempts to state a claim against the United States under the
FTCA independent of Oquendo’s actions, the Court finds that Plaintiff has failed to make the
necessary allegations to support such a claim. Plaintiff argues, without any factual support, that
the United States “negligently allow[ed] a foreseeable assault and battery to occur” and that “the
other TSA agents who were present . . . did nothing to stop this incident and/or aided and abetted
the crime.” (Pl. Opp’n to United States Mot. 10.) The Complaint is devoid of any allegations
that other TSA agents were present or witnessed any part of what occurred. Because Plaintiff
expressly acknowledges that that the Complaint “could, admittedly, be worded in a better way”
and requests leave to amend, (see id. at 11), the Court grants Plaintiff leave to amend the
Complaint only to the extent that Plaintiff can plead facts to support an independent claim
against the United States for tortious conduct unrelated to that of Oquendo.

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III. Conclusion
For the foregoing reasons, the Court grants the Port Authority’s and the United States’
motions to dismiss and dismisses Plaintiff’s claims against all Defendants except Oquendo. The
Court grants Plaintiff leave to amend the Complaint within thirty days of this Memorandum and
Order to allege facts sufficient to show that a TSA or United States employee aided and abetted
Oquendo or negligently failed to prevent his conduct.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: August 2, 2017
Brooklyn, New York

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