ZUZUL v. SHINSEKI, et al
Filing
24
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/6/2014; that Plaintiff's Objection to Notice of Substitution and Request for Hearing Regarding United States Attorney's Certification (Docket Entry 13 ) be DENIED. FURTHER RECOMMENDED that the United States be substituted as a party Defendant for William F. Pearson, M.D. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARCIA ZUZUL,
Plaintiff,
v.
ROBERT A. MCDONALD,
Secretary of Veterans
Affairs, et al.,1
Defendants.
)
)
)
)
)
)
)
)
)
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1:14CV251
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case comes before the undersigned Magistrate Judge on
Plaintiff’s Objection to Notice of Substitution and Request for
Hearing Regarding United States Attorney’s Certification.
Entry
13.)
For
the
reasons
below,
the
Court
(Docket
should
deny
Plaintiff’s instant Objection and should substitute the United
States for Defendant William F. Pearson, M.D.2
1
Robert A. McDonald became the Secretary of Veterans Affairs
on July 29, 2014, resulting in his substitution as Defendant,
pursuant to Federal Rule of Civil Procedure 25(d).
2
The undersigned Magistrate Judge will enter a Recommendation
in this matter because a decision to uphold the Attorney General’s
scope-of-employment certification amounts to a dismissal of all
claims against Defendant Pearson. See 28 U.S.C. 636(b); Lee v.
United States, 171 F. Supp. 2d 566, 578 (M.D.N.C. 2001) (Beaty, J.)
(explaining that upholding scope-of-employment certification would
eliminate court’s subject-matter jurisdiction because United States
has not waived sovereign immunity for intentional torts); see also
Bass v. Hill, No. 1:06CV543, 2006 WL 3919620, at *1 (M.D.N.C. Oct.
16, 2006) (unpublished) (addressing the plaintiff’s objection to
BACKGROUND
Plaintiff’s Amended Complaint alleges assault, battery, and
defamation under North Carolina law against Defendant William
Pearson, M.D., her co-worker at the Veterans Affairs Medical Center
(“VAMC”) in Salisbury, North Carolina.
24.)
(Docket Entry 5 at 1, 22-
It also alleges various claims against Plaintiff’s employer,
the Department of Veterans Affairs, for discrimination, harassment,
and retaliation based on gender and race under Title VII and 42
U.S.C. § 1981 (id. at 1, 16-21), which do not directly concern
Plaintiff’s instant Objection.
According to Plaintiff, at the VAMC, she works as a certified
registered nurse anesthetist and Defendant Pearson works as an
anesthesiologist.
(Docket Entry 14 at 2.)
Plaintiff contends
that, while she and Defendant Pearson prepared to administer
anesthesia to a patient, Defendant Pearson argued with Plaintiff
about the patient-care plan and then pushed her away from the
patient’s
bedside.
following
“her
(Id.)
efforts
to
Plaintiff
seek
redress
further
for
his
alleges that,
misbehavior,
[Defendant] Pearson [] engaged in a campaign to tarnish Plaintiff’s
professional reputation, to disgrace Plaintiff’s professionalism
and her abilities as a nurse anesthetist, and to disparage her
professional skills to her colleagues and superiors at [the] VAMC.”
scope-of-employment
certification
by
recommendation),
recommendation adopted, slip. op. (M.D.N.C. Jan. 11, 2007).
-2-
(Id. at 3.)
In that regard, Plaintiff asserts that Defendant
Pearson reviewed her charts without authorization, falsely accused
her of improper charting and of failing to attend a scheduled
procedure, and instigated a baseless performance review.
Finally,
according
to
Plaintiff,
Defendant
Pearson
(Id.)
assaulted
Plaintiff a second time at a departmental meeting by yelling and
pointing his finger at her regarding her purported failure to come
to the VAMC while on call.
The
United
States
(Id.)
filed
a
Notice
of
Substitution
as
to
Plaintiff’s claims against Defendant Pearson based on the United
States Attorney’s certification (pursuant to the Westfall Act, also
known
as
the
Federal
Employees
Liability
Reform
and
Tort
Compensation Act of 1988, codified at 28 U.S.C. § 2679(d)(1) and
(2)) that, at all relevant times, Defendant Pearson acted within
the scope of his federal employment.
(Docket Entry 8 at 1-2.)
Based on that determination, the United States concluded that,
pursuant to the Federal Tort Claims Act (“FTCA”), as amended by the
Westfall Act, “a suit against the United States [serves as] the
exclusive remedy for [Plaintiff’s] claims for damages arising from
common law torts resulting from the actions of [Defendant Pearson]
taken within the scope of [his] office or employment.”
(Id.
(citing 28 U.S.C. 2679(b)(1)).)
Plaintiff now objects to the Notice of Substitution and asks
the Court to deny the substitution, or in the alternative, to
-3-
provide for limited discovery and a hearing concerning whether
Defendant Pearson’s alleged tortious conduct occurred within the
scope of his employment.
(Docket Entry 13 at 1-2.)
The United
States responded (Docket Entry 16) and Plaintiff replied (Docket
Entry 18).
DISCUSSION
The Westfall Act provides that, “[u]pon certification by the
Attorney General that the defendant employee was acting within the
scope of his office or employment at the time of the incident out
of which the claim arose, any civil action . . . in a United States
district court shall be deemed an action against the United States
. . . and the United States shall be substituted as the party
defendant.”
28 U.S.C. § 2679(d)(1).3
However, the United States
Supreme Court has ruled that “[this] statute is fairly construed to
allow
[plaintiffs]
objections
to
certification.”
436-37
(1995).
to
the
present
to
Attorney
the
District
General’s
Court
their
scope-of-employment
Gutierrez de Martinez v. Lamagno, 515 U.S. 417,
In
other
words,
“[t]he
Attorney
certification is conclusive unless challenged.”
General’s
Gutierrez de
Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir.
1997).
3
“By regulation, the United States Attorneys are authorized
to issue [scope-of-employment] certifications on behalf of the
Attorney General.” Lee v. United States, 171 F. Supp. 2d 566, 572
n.3 (M.D.N.C. 2001) (citing 28 C.F.R. § 15.3(a)).
-4-
Judicial
review
of
scope-of-employment
certifications
addresses concerns about “the Attorney General’s incentive to grant
certification when the United States [is] immune from suit, thereby
shielding the federal employee from liability while not exposing
the United States to liability [under the FTCA].” United States v.
Al-Hamdi, 356 F.3d 564, 572 (4th Cir. 2004) (citing Gutierrez de
Martinez, 515 U.S. at 427-28).
The instant case presents such a
scenario because the FTCA’s waiver of sovereign immunity does not
extend to the intentional torts alleged by Plaintiff.
See 28
U.S.C. § 2680(h) (excluding assault, battery, libel, and slander
from FTCA).
Nonetheless, the Fourth Circuit has “[r]ecogniz[ed]
the ‘desirability of quickly resolving the scope-of-employment
issue’ because ‘immunity under the Westfall Act, like other forms
of absolute and qualified immunity, is an immunity from suit rather
than a mere defense to liability,’ [and the Fourth Circuit has]
emphasized that ‘the district court should remain cognizant of the
considerations weighing against protracted litigation under the
Westfall Act.’”
Borneman v. United States, 213 F.3d 819, 827 (4th
Cir. 2000) (quoting Guitierrez de Martinez, 111 F.3d at 1154-55)
(internal citations and some quotation marks omitted).
“When the [scope-of-employment] certification is challenged,
it serves as prima facie evidence and shifts the burden to the
plaintiff to prove, by a preponderance of the evidence, that the
defendant federal employee was acting outside the scope of his
-5-
employment.”
added).
Gutierrez de Martinez, 111 F.3d at 1152 (emphasis
“To carry its burden, the plaintiff must submit ‘specific
evidence or the forecast of specific evidence that contradicts the
Attorney General’s certification decision, not mere conclusory
allegations and speculation.’”
Borneman, 213 F.3d at 827 (quoting
Gutierrez de Martinez, 111 F.3d at 1155).
“To assist in this
inquiry, the district court, in its discretion, may allow limited
discovery or conduct an evidentiary hearing on the matter of scope
of employment.
However, such a hearing is unnecessary if the
certification, pleadings, affidavits, and any supporting documents
fail to reveal an issue of material fact.”
Lee v. United States,
171 F. Supp. 2d 566, 574 (M.D.N.C. 2001).
“At all stages of the
process, it is for the district court to weigh the sufficiency of
the evidence, to determine whether genuine issues of fact exist,
and ultimately to resolve these factual issues . . . to determine
whether the certification should stand.”
Borneman, 213 F.3d at
827.
In considering whether a defendant acted within the scope of
federal employment, “the district court must apply the respondeat
superior law of the state in which the alleged tortious conduct
occurred.”
Lee, 171 F. Supp. 2d at 574.
Plaintiff’s Amended
Complaint alleges that Defendant’s tortious conduct occurred in
North Carolina.
(Docket Entry 5 at 3-16.)
“Although, under North
Carolina law, the scope-of-employment issue would generally be one
-6-
for the jury to decide, under the Westfall Act and the FTCA, a
‘plaintiff
seeking
relief
against
a
federal
employee
is
not
entitled to a jury trial on the scope-of-employment issue, even if
the relevant state law would provide a jury trial.’”
Lee, 171 F.
Supp. 2d at 575 n.6 (quoting Gutierrez de Martinez, 111 F.3d at
1153).
Under North Carolina law, “‘[t]o be within the scope of
employment, an employee, at the time of the incident, must be
acting in furtherance of the principal’s business and for the
purpose of accomplishing the duties of his employment.’”
Matthews
v. Food Lion, LLC, 205 N.C. App. 279, 282, 695 S.E.2d 828, 831
(2010) (quoting Troxler v. Charter Mandala Ctr., 89 N.C. App. 268,
271, 365 S.E.2d 665, 668 (1988)).
In other words,
If the act of the employee was a means or method of doing
that which he was employed to do, though the act be
unlawful and unauthorized or even forbidden, the employer
is liable for the resulting injury, but he is not liable
if the employee departed, however briefly, from his
duties in order to accomplish a purpose of his own, which
purpose was not incidental to the work he was employed to
do.
Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66-67, 153
S.E.2d
804,
characterized
808
(1967).
the
North
Similarly,
Carolina
the
Fourth
standard
as
Circuit
has
involving
consideration of “the degree to which the physical confrontation
. . . represented an escalation of a work-related dispute and the
degree to which is was motivated by personal animosity.” Borneman,
213 F.3d at 829.
-7-
Although the intentional torts of employees generally do not
occur within the scope of employment, Medlin v. Bass, 327 N.C. 587,
594, 398
S.E.2d
460,
464
(1990),
North
Carolina
law
clearly
recognizes that some intentional torts do occur within the scope of
employment,
Borneman,
213
F.3d
at
829
(citing
cases).4
For
example, the North Carolina Supreme Court held that a jury could
find that a collector of insurance premiums who drew a pistol on a
policyholder
refusing
to
pay
acted
within
the
scope
of
his
employment if “the assault, however misguided and unauthorized, was
committed as an incident of the employee’s duties in the collection
of accounts.” Clemmons v. Life Ins. Co. of Ga., 274 N.C. 416, 42223, 163 S.E.2d 761, 766 (1968).
In contrast, the North Carolina
Supreme Court held that, as a matter of law, a bus boy’s unprovoked
attack on a customer did not occur within the scope of his
employment because “it was not for the purpose of doing anything
related to the duties of a bus boy, but was for some undisclosed,
personal motive.”
Wegner, 270 N.C. at 68, 153 S.E.2d at 809.
In the instant case, Plaintiff contends that the alleged torts
occurred as “the result of [Defendant] Pearson’s personal vendetta
against Plaintiff.”
(Docket Entry 14 at 7.)
4
In that regard,
Under North Carolina law, assault, battery, and defamation
qualify as intentional torts. See Kubit v. MAG Mut. Ins. Co., 210
N.C. App. 273, 286, 708 S.E.2d 138, 149 (2011) (defamation); Britt
v. Hayes, 140 N.C. App. 262, 264, 535 S.E.2d 892, 894 (2000), reh’g
on other grounds, 142 N.C. App. 190, 541 S.E.2d 761 (2001) (assault
and battery).
-8-
Plaintiff asserts that, “[i]n arguing with and pushing Plaintiff,
[Defendant] Pearson departed from his duties of patient care and
the
proper
administration
of
preoperative
medication
.
.
.
[demonstrating] no regard for the patient’s safety and comfort
. . . .”
(Id.)
With respect to the second alleged assault,
according to Plaintiff, “[Defendant] Pearson’s belligerence toward
Plaintiff as he pointed his finger and yelled at her did not serve
any
professional
purpose.”
(Id.
at
8.)
As
to
Plaintiff’s
defamation claim, she contends that “[m]anufacturing and repeating
false allegations against Plaintiff [did] not [occur] within the
scope of Pearson’s employment; rather, [these activites] disrupted
the smooth operation of the Anesthesia Department.”
(Id. at 9.)
Plaintiff further notes that “[Defendant] Pearson’s defamatory
statements
[were]
accompanied
by
threats
to
take
Plaintiff’s
license, house, and job, which further demonstrate his personal
motivations to harm Plaintiff and are unrelated to his employment.”
(Id.)
In support of substitution, the United States underscores that
all of Plaintiff’s alleged torts occurred in the workplace and
arose from workplace disputes.
(Docket Entry 16 at 3-5.)
In
response, Plaintiff accuses the government of oversimplifying the
scope-of-employment
inquiry,
noting
that
its
“rudimentary
explanation that Pearson was ‘on the job’ when the intentional
torts
were
committed
and
cannot
-9-
be
held
individually
liable
. . . ignores the true analysis required by law.”
at 4.)
(Docket Entry 18
Nonetheless, although not conclusive, “[e]vidence that
disputes were work related, occurred on the employer’s premises,
and during work hours supports the conclusion that an employee was
acting within the scope of his employment at the time of the
alleged incidents.” Whedbee v. United States, 352 F. Supp. 2d 618,
625-26 (M.D.N.C. 2005) (Beaty, J.) (applying North Carolina law).
Furthermore, as the United States has noted, Plaintiff has not
identified in her instant filings any specific personal motivation
for Defendant Pearson’s alleged torts to suggest that they occurred
outside the scope of employment.
(See Docket Entry 14 at 1-10;
Docket Entry 18 at 1-10; see also Docket Entry 16 at 9.)5
Because
the Fourth Circuit requires “specific evidence or the forecast of
specific
evidence
certification
that
decision,
speculation,”
the
not
Borneman,
repetition
contradicts
of
terms
mere
213
the
Attorney
conclusory
F.3d
“personal
at
827,
General’s
allegations
Plaintiff’s
vendetta”
and
and
mere
“personal
animosity” without explanation as to the source or nature of any
5
Although Plaintiff’s Amended Complaint asserts that race and
gender motivated Defendant Pearson’s alleged mistreatment of
Plaintiff (see Docket Entry 5 at 3-16), Plaintiff makes no such
assertions in her instant filings (see Docket Entry 13 at 1-2;
Docket Entry 14 at 1-10; Docket Entry 18 at 1-10).
In fact,
Plaintiff states that she “seeks relief for assault, battery, and
defamatory statements that are injuries separate from her civil
rights claims.” (Docket Entry 18 at 8.) For these reasons, the
Court need not consider whether race or gender motivated the
alleged torts or whether Title VII bars Plaintiff’s tort claims, as
the United States has contended (see Docket Entry 16 at 16-18).
-10-
personal motivations (see Docket Entry 14 at 5, 7-9) does not
suffice to meet her burden of persuasion.
Instead, Plaintiff describes the “escalation of a work-related
dispute,”
Borneman,
213
F.3d
at
829,
that
started
with
an
altercation at a patient’s bedside - concerning issues related to
patient care - and led to Defendant Pearson allegedly threatening
to
take
Plaintiff’s
job,
professional
(See Docket Entry 14 at 7-9.)
license,
and
house.
Although Plaintiff argues that
Defendant Pearson’s stated “goals [] to cause [Plaintiff] to lose
her job, negatively affect her nursing license, personally sue her,
and take her house . . . [reflect his] personal motives” (Docket
Entry 18 at 2), Defendant Pearson’s alleged desire for Plaintiff to
suffer professional and personal harms does not necessarily reflect
personal motivations.
personal
motivation
personal vendetta.
Nor does the existence of some degree of
transform
a
work-related
dispute
into
a
See Whedbee, 352 U.S. at 626 (“[I]t cannot be
that any one factor, including whether personal motivations played
a role, is dispositive.”).
To rebut the certification, Plaintiff
must identify a personal motive independent of the work-related
dispute, not a motive that arose from that dispute.
See, e.g.,
Lee, 171 F. Supp. 2d at 576-77 (“Because Plaintiff, here, has
failed to sufficiently establish that [Defendant’s] actions arose
from independent and personal motives unrelated to [Defendant’s]
managerial responsibilities, Plaintiff has failed to rebut the
-11-
certification by [the Attorney General] that [Defendant] was acting
within the scope of his employment.”).
For example, in a case involving a dispute between doctors at
the National Institutes of Health (“N.I.H.”), the Fourth Circuit
(applying Maryland law) concluded: “Even if the defendants harbored
ill will for [the plaintiff], we will not look at that ill will
alone, but must look at the alleged acts and the doctors’ duties at
the N.I.H. in making the decision about whether they were acting
within the scope of employment.”
Maron v. United States, 126 F.3d
317, 325 (4th Cir. 1997).
In that case, after the plaintiff
apparently
reported
discovered
and
to
superiors
scientific
misconduct by his colleagues,
[T]he doctors [allegedly] removed him from positions of
power in the Lab, denigrated him in front of his
patients, published false accusations about him,
restricted
his
access
to
patients
and
on-going
experiments, removed his name as co-author of several
publications, declined to credit him for his work at the
Lab, and told patients that he was no longer employed at
the N.I.H.
Id. at 320.
In affirming the district court’s decision to uphold
the scope-of-employment certification, the Fourth Circuit reasoned
that the district court correctly declined “to consider only
whether
the
plaintiff]
.
defendant
doctors
.
to
.
and
use
held
that
animosity
sentiment
towards
alone
to
[the
deny
substitution. Instead it is more proper to notice, as the district
-12-
court did, that all of the complained of acts were the very sort
that the defendants conducted during a regular work day.”
Id. at
325.
Plaintiff also emphasizes that Defendant Pearson’s alleged
tortious acts
departed
from
established
procedures,
reflected
unprofessional conduct, and lacked authorization from his employer
to support that they occurred outside the scope of employment.
(See Docket Entry 18 at 4-7.)
The Fourth Circuit, however, has
specifically rejected Plaintiff’s line of reasoning:
“Few government authorities are authorized to commit
torts as part of their line of duty, but to separate the
activity that constitutes the wrong from its surrounding
context - an otherwise proper exercise of authority —
would effectively emasculate the immunity defense. Once
the wrongful acts are excluded from an exercise of
authority, only innocuous activity remains to which
immunity would be available.
Thus the defense would
apply only to conduct for which its not needed.”
Maron, 126 F.3d at 325 (quoting Johnson v. Carter, 983 F.2d 1316,
1323 (4th Cir. 1993), overruled on other grounds by, Gutierrez de
Martinez, 515 U.S. 417).
Rather, “[i]n determining liability, the
critical question is whether the tort was committed in the course
of activities that the employee was authorized to perform.”
White
v. Consolidated Planning, Inc., 166 N.C. App. 283, 298, 603 S.E.2d
147, 157 (2004) (emphasis added).
Thus, this Court (per United
States District Judge James A. Beaty, Jr.), concluded that, under
North Carolina law, a supervisor who allegedly committed three
successive batteries on an employee acted within the scope of his
-13-
federal employment (with the United States Postal Service) because
the batteries occurred within the context of an ongoing, workrelated argument.
In
this
Lee, 171 F. Supp. 2d at 576-577.
case,
the
Court
should
similarly
conclude
that
Defendant Pearson’s alleged torts occurred in the course of his
authorized duties, even though the VAMC did not authorize him to
commit tortious acts.
The discussion of patient care in the
operating room, the reviewing of patient charts, the reporting of
purported misconduct by a co-worker, and the discussion of workrelated conduct in a personnel meeting all reflect the ordinary
duties of a VAMC doctor, even if, as Plaintiff alleges, Defendant
Pearson did not perform such duties in an authorized manner.
sum,
Plaintiff
“specific
has
Guitierrez
evidence
de
not
met
her
or
the
forecast
Martinez,
111
burden
F.3d
to
of
at
come
forward
specific
1155,
to
In
with
evidence,”
refute
the
government’s characterization of the alleged tortious acts as the
escalation of a work-related conflict.
Nor
has
Plaintiff
raised
any
warranting discovery or a hearing.
material
factual
dispute
See id. (affirming district
court’s decision not to allow discovery and hearing where the
plaintiff did not identify “any specific evidence that could be
uncovered by further discovery beyond the speculative possibility
of inconsistency”); Lee, 171 F. Supp. 2d at 575 n.7 (declining to
hold
a
hearing
and
instead
-14-
reviewing
scope-of-employment
certification based on pleadings and sworn statements).
For these
reasons, the Court should deny Plaintiff’s instant Objection and
should uphold the substitution of the United States for Defendant
Pearson.
CONCLUSION
Plaintiff has failed to establish grounds for relief under 28
U.S.C. § 2679(d).
IT IS THEREFORE RECOMMENDED that Plaintiff’s Objection to
Notice of Substitution and Request for Hearing Regarding United
States Attorney’s Certification (Docket Entry 13) be DENIED.
IT
IS
FURTHER
RECOMMENDED
that
the
United
States
substituted as a party Defendant for William F. Pearson, M.D.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 6, 2014
-15-
be
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