Klein v. Attorney General of the United States US Department of Justice et al
Filing
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ENTRY AND ORDER GRANTING DEFENDANTS' MOTION TO SUBSTITUTE THE UNITED STATES AS A PARTY DEFENDANT FOR THE SIX INDIVIDUAL DEFENDANTS AND PARTIAL MOTION TO DISMISS AGAINST ALL DEFENDANTS (DOC. 14 ) - The United States is SUBSTITUTED as a Party Def endant for the Individual Defendants; the First, Second, Third, Fourth, Seventh, and Eighth Causes of Action are DISMISSED as to all Defendants; the Fifth Cause of Action is DISMISSED to the extent that it asserts a claim under the ADA, but it may proceed under The Rehabilitation Act as to only Defendant James, Secretary of the Air Force; and to the extent any claims are asserted against WPAFB, they are DISMISSED. Signed by Judge Thomas M. Rose on 11/4/15. (ep)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GERALDINE KLEIN,
Case No. 3:15-cv-134
Plaintiff,
v.
Judge Thomas M. Rose
UNITED STATES OF AMERICA,
et al.,
Defendants.
______________________________________________________________________________
ENTRY AND ORDER GRANTING DEFENDANTS’ MOTION TO
SUBSTITUTE THE UNITED STATES AS A PARTY DEFENDANT FOR
THE SIX INDIVIDUAL DEFENDANTS AND PARTIAL MOTION TO
DISMISS AGAINST ALL DEFENDANTS (DOC. 14)
______________________________________________________________________________
This case is before the Court on Defendants’ Motion to Substitute the United States as a
Party Defendant for the Six Individual Defendants and Partial Motion to Dismiss Against All
Defendants (“Motion”) (Doc. 14). Plaintiff Geraldine Klein (“Klein”) filed a memorandum in
opposition (Doc. 17) to the Motion, in response to which Defendants have filed a reply (Doc. 19).
The Motion is therefore fully briefed and ripe for the Court’s review. For the reasons set forth
below, the Court GRANTS the Motion in its entirety.
BACKGROUND
A. The Complaint
On April 14, 2015, Klein filed the Complaint in this lawsuit. (Doc. 1.) Klein alleges that
she was formerly employed as an Acquisition Program Manager at Wright Patterson Air Force
Base. (Id. at ¶ 20.) Klein alleges that she has “cold-induced asthma” and is “highly allergic to
mold.” (Id. at ¶ 22.) As a result, when exposed to mold, Klein suffers from “severe allergic
asthma which can be fatal resulting in status asthmaticus, pneumonia, and other life-threatening
conditions.” (Id.) Klein alleges that she was approved for a “medical telework (working from
home or tele-commuting) accommodation plan for cold-weather telework and other adverse
environmental conditions,” including mold. (Id. at ¶ 23.) The plan was allegedly “formalized”
on or around May 30, 2014, but then revoked on July 23, 2014. (Id. at ¶¶ 24, 29.) Klein claims
that her supervisors at Wright Patterson Air Force Base failed to accommodate her medical
conditions by refusing to permit her to work from home during cold weather and requiring her to
work in buildings where mold was present. (Id. at ¶¶ 170-80.) Klein alleges that, among other
damages, she has lost significant income because she was unable to come to work. (Id. at ¶ 75.)
On November 5, 2014, Klein was notified that she would be marked absent without leave if
she did not return to work, notwithstanding her alleged medical conditions. (Id. at ¶ 76.) Klein
was formally ordered to return to work, failed to do so, and was marked absent without leave. (Id.
at ¶ 77.) After a medical review of her records, Klein’s employment with the Air Force was
terminated on April 3, 2015. (Id. at ¶¶ 85-96.)
Klein also claims to have suffered damages because she was required to work for a
supervisor, Defendant Lt. Colonel Ted Bloink, who was allegedly arrested on charges of soliciting
a prostitute. (Id. at ¶¶ 26, 33.) Klein requested to be transferred to another supervisor, but her
request was denied. (Id. at ¶¶ 35-36.)
On March 22, 2014, Klein filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) relating to her assignment to work under Defendant Bloink. (Id. at ¶
100.) Klein alleges that the internal administrative EEO process has not been completed. (Id. at
¶ 104.)
Klein asserts seven causes of action against nine Defendants: (1) Negligence, (2) Civil
2
Assault, (3) Intentional Infliction of Emotional Distress, (4) Civil Conspiracy, (5) Violation of the
Americans with Disabilities Act of 1990 (“ADA”) and/or the Rehabilitation Act, (6) Civil Fraud,
and (7) Hostile Workplace. 1
Each of the seven causes of action are asserted against all
Defendants. Defendants are: (1) the United States of America, (2) Deborah Lee James, Secretary
of the Air Force, (3) General Janet Wolfenbarger (Air Force), (4) Lt. Colonel Ted Bloink (Air
Force), (5) Lt. Colonel John Linnette (Air Force), (6) Daniel L. Brumfield (a “branch chief” in the
Air Force), (7) Charles Crawford, III (Klein’s “first-level supervisor), and (8) Don Keith (the
“direct superior” of Defendant Bloink). (Doc. 1 at ¶¶ 11-18.) Defendants James, Wolfenbarger,
Bloink, Linnette, Brumfield, Crawford, and Keith are referred to collectively as the “Individual
Defendants” in this Order.
B. Defendants’ Motion
Defendants seek two forms of relief from the Court: substitution of the United States as a
Party Defendant for the Individual Defendants named in the Complaint, and dismissal of Klein’s
causes of action for negligence, civil assault, intentional infliction of emotional distress, civil
conspiracy, civil fraud, and hostile workplace as to all Defendants. (Doc. 14.) Defendants thus
seek dismissal of all of Klein’s claims, with the sole exception of Klein’s claim for failure to
accommodate her medical conditions. Defendants seek dismissal of the failure to accommodate
claim only to the extent that it is asserted under the ADA, but do not object to the claim proceeding
against Defendant James, Secretary of the United States Air Force, under the Rehabilitation Act.
(Id. at 19.)
1
Klein asserts seven causes of action, but there is no “Sixth Cause of Action” alleged in the Complaint. As a result,
the seven causes of action are alleged as the First through Fifth Causes of Action, and then the Seventh and Eighth
Causes of Action. (Doc. 1 at ¶¶ 115-240.)
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ANALYSIS
A. Substitution of the United States for the Individual Defendants
Klein asserts five tort claims against the Individual Defendants. Defendants argue that the
Individual Defendants, as federal employees, are immune from claims based on torts allegedly
committed within the course of their employment under the Federal Employees Liability Reform
and Tort Compensation Act of 1988 (commonly known as the Westfall Act). Defendants are
correct.
Under the doctrine of sovereign immunity, the United States is immune from suit unless it
expressly waives its sovereign immunity and consents to be sued. Mackey v. United States, 247
F. App’x 641, 643 (6th Cir. 2007) (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct.
1349, 63 L.Ed.2d 607 (1980)). The United States provided such a waiver and consent to be sued
in the Federal Tort Claims Act (“FTCA”), which provides that:
The United States shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a private individual under
like circumstances, but shall not be liable for interest prior to judgment or for
punitive damages.
18 U.S.C. § 2674.
In 1998, the FTCA was amended by the Westfall Act to provide protections to federal
employees whose negligent or wrongful acts in the course of their employment cause an injury.
The Westfall Act provides, in relevant part:
The remedy against the United States provided by sections 1346(b) and 2672 of this
title for injury or loss of property, or personal injury or death arising or resulting
from the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment is exclusive of any other
civil action or proceeding for money damages by reason of the same subject matter
against the employee whose act or omission gave rise to the claim or against the
estate of such employee. Any other civil action or proceeding for money
damages arising out of or relating to the same subject matter against the
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employee or the employee’s estate is precluded without regard to when the act
or omission occurred.
28 U.S.C.A. § 2679(b)(1) (emphasis added). Thus, the Westfall Act provides that the FTCA, with
the United States as a defendant, is the exclusive remedy for common law torts committed by
federal employees acting within the scope of their employment. See Sullivan III v. Shimp, 324
F.3d 397, 399 (6th Cir. 2003).
To determine if Klein’s tort claims against the Individual Defendants are precluded by the
Westfall Act, the Court must determine whether they are alleged to have committed the tortious
conduct in the course of their federal employment. The parties do not dispute that the Individual
Defendants are federal employees.
See 28 U.S.C. §§ 2671 (defining “employee of the
government”). The question of whether an employee acted within the scope of his employment
“is a question of law, not fact, made in accordance with the law of the state where the conduct
occurred.” Sullivan, 324 F.3d at 399 (quoting Singleton v. United States, 277 F.3d 864, 870 (6th
Cir. 2002). Here, the allegedly tortious conduct occurred in Ohio. “Under Ohio law, an
employee acts within the scope of his employment ‘when the act can fairly and reasonably be
deemed to be an ordinary and natural incident or attribute of the service to be rendered, or a
natural, direct, and logical result of it.’” Id. (quoting Posin v. A.B.C. Motor Court Hotel, Inc., 45
Ohio St.2d 271, 344 N.E.2d 334, 339 (1976)); see also Martinek v. United States, 254 F. Supp. 2d
777, 783 (S.D. Ohio 2003) (conduct within the scope of employment is (1) of the kind which the
employee is employed to perform; (2) occurs substantially within the authorized limits of time and
space; (3) and is actuated, in part, by a purpose to serve the employee).
In this case, the United States Attorney for the Southern District of Ohio has certified that
the Individual Defendants were acting within the scope of their employment:
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Pursuant to 28 U.S.C. § 2679(d), and by virtue of the authority vested in me by the
Attorney General of the United States under 28 C.F.R. § 15.3, I certify, on the basis
of the information now available, that General Janet Wolfenbarger, Lieutenant
Colonel Ted Bloink, Charles A. Crawford III, Dan Brumfield, Don Keith, and
Lieutenant Colonel John Linnett were acting within the scope of their employment
as employees of the United States Air Force, a Federal Agency as defined by 28
U.S.C. § 2671, at the times of the alleged incidents out of which Plaintiff’s claims
against them arose.
(Doc. 14-1.)
The United States Attorney’s certification is prima facie evidence that the
employees’ conduct was within their scope of employment. RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1143 (6th Cir. 1996); Coleman v. United States, 91 F.3d 820, 823 (6th
Cir. 1996).
Moreover, the Complaint’s allegations regarding the Individual Defendants describe
conduct falling within the scope of their employment under Ohio law.
Defendant Bloink: The Complaint expressly alleges that Bloink was Klein’s “direct
supervisor” at WPAFB (Doc. 1 at ¶ 17) and “was acting within his job function when the events
comprising the lawsuit took place.” (Id. at ¶ 11.) Bloink is alleged to have “made reprisals
involving [Klein’s] need for medical telework” and to have failed to timely process Klein’s
medical telework plan request. (Id. at 27.)
Defendant Brumfield:
Brumfield is allegedly employed by the United States and
Secretary of the Air Force as a branch chief. (Id. at ¶16.) Brumfield is alleged to have changed
Klein’s work duties, assigned her to work with Bloink, and denied her request to be transferred
away from him. (Id. at ¶¶ 28, 36.) He is also alleged to have been involved in the denial of
Klein’s accommodation request and to have been the “decision maker” regarding the termination
of her employment. (Id. at ¶¶ 45, 97.)
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Defendant Crawford:
Crawford was Klein’s first-level supervisor.
(Id. at ¶ 15.)
Crawford allegedly “formalized” Klein’s medical and routine telework plan and, along with
Brumfield, is alleged to have assigned Klein to work with Bloink. (Id. at ¶¶ 14, 29.) When Klein
suffered asthma attacks due to her medical conditions, she reported them in writing to Crawford.
(Id. at ¶ 39.) Crawford is also alleged to have “refused to approve” Klein’s medical telework plan
and to have created false documentation to use as a basis to order Klein to return to work. (Id. at
¶¶ 41, 51.)
Defendant Keith: Keith was a direct superior of Bloink and became a subordinate of
Brumfield. (Id. at ¶ 17.) Keith allegedly assigned Klein to work for Bloink in August 2014 and
is alleged to “have known of” Klein’s accommodation telework plan. (Id. at ¶ 25, 40.)
Defendant Linnette:
Linnette was the medical doctor at WPAFB who allegedly
performed a medical review of records relating to Klein’s accommodation request and “issued an
opinion on [Klein’s] overall condition.” (Id. at ¶¶ 85, 88.) Klein alleges that Linnette’s opinion
“misrepresented critical, life-saving, known medical and industry protocols for [an] allergic
asthmatic patient.” (Id. at ¶ 89.)
Defendant Wolfenbarger: Wolfenbarger, an Air Force General, was the superior of
Brumfield, Keith, and Linnette. (Id. at ¶ 14.) Klein alleges that she notified Wolfenbarger of
Bloink’s arrest for soliciting a prostitute and requested to be reassigned away from Bloink. (Id. at
¶ 27.) Wolfenbarger is primarily alleged to be liable as a supervisor to other employees (see, e.g.,
id. at ¶ 106), but also to have been responsible for delay in processing Klein’s EEO complaint.
(Id. at ¶ 112.)
Based on the United States’ Attorney’s certification and Complaint’s allegations, the
Individual Defendants are alleged to have acted within the scope of their employment.
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The Court rejects Klein’s argument that the Individual Defendants did not act within the
scope of their employment because their conduct was “intentional, egregious, and tortious.”
(Doc. 17 at 21 (citing Sampson v. Cuyahoga Metro. Hous. Auth., 2010-Ohio-3415, 188 Ohio App.
3d 250, 935 N.E.2d 98, aff’d, 2012-Ohio-570, ¶ 3, 131 Ohio St. 3d 418, 966 N.E.2d 247).) The
Sampson case dealt with the question of whether the Cuyahoga Metro Housing Authority
(“CMHA”) and three of its employees were immune from liability for intentional tort claims
brought by a former employee under Ohio’s “Political Subdivision Tort Liability” statute.
2010-Ohio-3415 at ¶ 21. The statute provided that political subdivisions were not liable in
damages in a civil action based on an act or omission “in connection with a governmental or
proprietary function.” Id. at ¶ 22 (quoting Ohio Rev. Code § 2744.02). Under an exception,
however, a political subdivision could be held liable in “[c]ivil actions by an employee . . . against
his political subdivision relative to any matter that arises out of the employment relationship
between the employee and the political subdivision.” Id. at ¶ 23 (quoting Ohio Rev. Code §
2744.09(B)). The CMHA argued that the plaintiff’s intentional tort claims did not arise out of his
employment relationship, and therefore did not fall within the statutory exception.
Rejecting this argument, the court of appeals disagreed with the notion that, as a “broad
proposition of law,” conduct underlying an intentional tort cannot arise out of an employment
relationship under § 2744(B). Id. at ¶¶ 30-34. Instead, the court of appeals analyzed the specific
facts alleged to determine whether the defendants’ conduct fell within the scope of their
employment – applying the same standard that this Court applied above. Id. at ¶¶ 35-37.
The Court does not see why Sampson is relevant to its consideration of whether the
Individual Defendants’ alleged conduct was within the scope of their employment. The analysis
in Sampson is limited to the construction of Ohio Rev. Code §§ 2744.02 and 2744.09(B). Those
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statutes are not at issue in this case. Nor is the Court aware of any other reason why the
construction of an Ohio statute regarding political subdivision liability would be applicable to this
Court’s assessment of federal employees’ immunity from suit under the Westfall Act. Moreover,
Sampson does not even support Klein’s argument that “intentional, egregious, and tortious”
conduct cannot be found to be within the scope of the Individual Defendants’ employment under
Ohio law. To the contrary, Sampson holds that, in some circumstances, the conduct underlying
intentional torts committed by political subdivision employees can be within the scope of their
employment. Here, the alleged conduct underlying the tort claims falls within the scope of the
Individual Defendants’ employment. Thus, under the Westfall Act, Klein’s claims based on that
conduct may be brought against only the United States. 28 U.S.C.A. § 2679(b)(1). There is
nothing in Sampson, even if it did apply here, that is inconsistent with either of these conclusions.
The Court will grant Defendants’ motion to substitute the United States as a Defendant for the
Individual Defendants on Klein’s tort claims.
Klein also asserts claims against the Individual Defendants for failure to accommodate
under the ADA or Rehabilitation Act (Fifth Cause of Action) and for hostile workplace under Title
VII (Eighth Cause of Action). (Doc. 1 at ¶¶ 165-189, 222-240.) As discussed infra at page 15,
Klein does not have a cause of action under the ADA against any Defendant and her failure to
accommodate claim must proceed, if at all, under the Rehabilitation Act. When a claim is
asserted under both the Rehabilitation Act and Title VII, the proper defendant is “the head of the
department, agency or unit” in which the alleged discriminatory acts occurred. See 42 U.S.C. §
2000e-16(c) (in a civil action brought by employee under the Civil Rights Act, “the head of the
department, agency, or unit, as appropriate, shall be the defendant”); 29 U.S.C. § 794(a)(1) (“The
remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C.
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2000e-16) . . . shall be available, with respect to any complaint under section 791” of the
Rehabilitation Act). Here, the Secretary of the Air Force is the proper defendant on Klein’s
claims under the Rehabilitation Act and Title VII. Klein’s Fifth and Eighth Causes of Action are
therefore dismissed as to the Individual Defendants.
B. Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction
Defendants move to dismiss Klein’s tort claims as to all Defendants under Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction. Defendants’ arguments are that (1) all of Klein’s
tort claims are barred by her failure to exhaust her administrative remedies, and (2) her assault and
fraud claims are also barred by the doctrine of sovereign immunity. (Doc. 14 at 11-15.)
Motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) may be categorized as either a
facial attack or factual attack on the sufficiency of the pleading. Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990). Courts reviewing a facial attack accept a complaint’s
allegations as true; whereas, courts reviewing a factual attack need not presume the truth of the
complaint’s allegations. Id. The plaintiff has the burden of establishing the existence of subject
matter jurisdiction. Hedgepath v. Tennessee, 215 F.3d 608, 611 (6th Cir. 2000). A dismissal of a
complaint under Rule 12(b)(1) is without prejudice. Ohio Nat’l Life Ins. Co., 922 F.2d at 325.
The Court agrees that Klein’s tort claims (the First, Second, Third, Fourth, and Seventh
Causes of Action) are barred because she failed to exhaust her administrative remedies before
bringing suit. (Doc. 14 at 12-13 (citing, among others, 28 U.S.C. § 2675(a); McNeil v. United
States, 508 U.S. 106, 113 (1993); Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1990).)
Section 2675(a) of the FTCA states, in pertinent part:
An action shall not be instituted upon a claim against the United States for money
damages for injury or loss of property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
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acting within the scope of his office or employment, unless the claimant shall
have first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by certified or
registered mail.
28 U.S.C. § 2675(a) (emphasis added). A claimant will be deemed to have presented his or her
claim in compliance with Section 2675(a) when the claimant submits a Standard Form 95 to the
appropriate federal agency. 28 C.F.R. § 14.2(a). Submitting a Standard Form 95, however, is
not the only way to satisfy Section 2675(a). Alternatively, the claimant may satisfy the statute’s
requirements by any means that “1) give[s] written notice of a claim sufficient to enable the agency
to investigate the claim[,] and 2) place[s] a value (or ‘sum certain’) on the claim.” Glarner v.
United States Department of Veterans Administration, 30 F.3d 697, 700 (6th Cir. 1994).
Klein concedes that she did not submit a Standard Form 95 for any of her tort claims, but
nonetheless claims to have exhausted her administrative remedies by (1) submitting two letters to
the Secretary of the Air Force “raising the claim of civil assault (and more),” and (2) providing
“detailed monetary damages to EEO unit multiple times, with updates, as damages increased . . . .”
(Doc. 17 at 31, n. 20.) Alternatively, Klein argues that the United States should be equitably
estopped from raising the Court’s lack of subject matter jurisdiction as a defense. (Doc. 17 at
32-33.) Neither of Klein’s arguments have merit.
The Complaint’s allegations do not establish that Klein (1) gave written notice of her tort
claims sufficient to enable the Air Force to investigate them, or (2) placed a value on her claims.
See Glarner, 30 F.3d at 700. Neither of the two letters (dated October 28, 2014 and November 7,
2014) that Klein claims to have sent to the Secretary of the Air Force are mentioned in the
Complaint. (Doc. 17 at 31, n. 20.) Nor did Klein attach the letters to her Opposition or submit
any other evidence establishing the letters’ contents – which she could have done in opposition to
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Defendants’ Motion. See Ohio Nat’l Life Ins., 922 F.2d at 325 (court has discretion to allow
parties to supplement the record with affidavits or present other evidence to resolve jurisdictional
question). Klein’s assertion that she detailed the monetary damages for her tort claims through
the EEO process is also unsupported. Klein directs the Court to paragraphs 36, 44, 50, 100, 110,
and 114 of the Complaint, but those paragraphs do not allege what information, if any, Klein
provided about her tort claims during the EEO process. (See Doc. 17 at 33; Doc. 1 at ¶¶ 100-101.)
The conclusory assertions in Klein’s Opposition are not evidence and do not meet her burden of
establishing subject matter jurisdiction.
Klein’s argument that the Government should be equitably estopped from raising her
failure to exhaust her administrative remedies also fails. Klein notes that the doctrine of equitable
estoppel may be invoked where a litigant has “lulled the plaintiff into believing that it was not
necessary for him to commence litigation.” (Doc. 17 at 32 (quoting Cerbone v. ILGWU, 768 F.2d
45, 50 (2d Cir.1985).2) Yet, Klein never cites to any evidence or allegations showing that any
Defendant “lulled her into believing” that she did not have to exhaust her administrative remedies.
Instead, Klein appears to re-assert the argument that her tort claims were raised through the EEO
process. (Doc. 17 at 32-33.) As discussed above, there is no indication that she did so in the
record.
It may be that Klein sufficiently presented her tort claims, in writing, to the Air Force to
meet the jurisdictional requirements of 28 U.S.C. § 2675(a). Klein failed to allege such facts in
her Complaint, however, and again failed to meet her burden in response to Defendants’ Motion.
2
The discussion of equitable estoppel in Cerbone contains the language quoted by Klein in her Opposition. The
citation in Klein’s Opposition, however, is missing the case name, reporter, volume number, court and publication
date. As a result, the Court conducted a Westlaw search to determine which case Klein might be citing. Even if
Klein intended to cite a different case, it would not affect the Court’s ruling on Defendants’ Motion.
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Accordingly, the Court dismisses the First, Second, Third, Fourth, and Seventh Causes of Action
of the Complaint as to all Defendants.
Even if Klein had exhausted her administrative remedies, her claims for assault and fraud
would still be barred by sovereign immunity. The United States is subject to suit only insofar as it
has consented to be sued. See United States v. Sherwood, 312 U.S. 584, 586-87 (1941). Any
statute waiving the United States’ sovereign immunity is strictly construed. See Lane v. Pena,
518 U.S. 187, 192 (1996). Congress’ waiver of sovereign immunity under the FTCA for common
torts was expressly limited by 28 U.S.C. § 2680. Under § 2680(h), the waiver of sovereign
immunity does not apply to “[a]ny claim arising out of assault, battery . . . misrepresentation [or]
deceit . . . .” 28 U.S.C. § 2680(h); United States v. Shearer, 473 U.S. 52, 54-55, 105 S.Ct. 3039,
87 L.Ed.2d 38 (1985). Thus, Klein’s assault claim is expressly barred. Her fraud claim is also
barred because it arises out of alleged misrepresentations and deceit by the Individual Defendants.
See Hiles v. Army Review Bd. Agency, No. 1:12-CV-673, 2013 WL 1196594, at *7 (S.D. Ohio
Mar. 25, 2013).
C. Defendants’ Motion to Dismiss For Failure to State a Claim
Defendants move to dismiss the Second and Eighth Causes of Action (for assault and
“hostile workplace,” respectively) for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
(Doc. 14 at 15-16.) To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must provide more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not
enough.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007).
“[O]nce a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 1969. The factual allegations must be
enough, however, to raise a right to relief above the speculative level. Id. at 1965.
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To plead a claim of civil assault under Ohio law, a plaintiff must allege a “willful threat or
attempt to harm or touch another offensively, which threat or attempt reasonably places the other
in fear of such contact.” Lloyd v. Rutledge, Montgomery App. No. 21293, 2006-Ohio-6123, ¶ 7
(quoting Brooks v. Lady Foot Locker, Summit App. No. 22297, 2005-Ohio-2394, ¶ 18). A key
element of assault is that the defendant “knew with substantial certainty that his or her act would
bring about harmful or offensive contact.” Lloyd, 2006-Ohio-6123 at ¶ 7 (quoting Brooks,
2005-Ohio-2394 at ¶ 18). “The threat or attempt must be coupled with a definitive act by one who
has the apparent ability to do the harm or to commit the offensive touching.” Id.
Klein’s assault claim is based on allegations that Defendants “intentionally, willfully,
maliciously, and continuously tried to force Plaintiff to return to work in a building which was
flood/water damaged, where mold existed and where the air quality was not tolerable for the
Plaintiff’s physical disability.”
(Doc. 1 at ¶ 128.)
Klein alleges that she was in “grave
apprehension” because she was unable to breathe in the water-damaged complex, and did suffer a
severe reaction when she was required to work in one such building. (Id. at ¶¶ 131-32.)
These allegations do not plausibly state a claim for assault under Ohio law. Klein has not
alleged that she suffered any actual or threatened physical contact by any Defendant. Klein has
not cited any authority suggesting that exposure to ambient mold is sufficient to satisfy this
element. Nor does she allege any “definitive act” by anyone who had “the apparent ability to do
the harm or to commit the offensive touching.” Klein’s claim for assault is also dismissed for
failure to state a claim under Rule 12(b)(6).
Klein fails to state a claim for hostile workplace in her Eighth Cause of Action. Klein
does not dispute Defendants’ assertion that, in order “[t]o state a claim for sexual harassment, or
hostile work environment based on sexual harassment, a plaintiff must show that she was actually
14
subjected to unwanted sexual conduct, based on her sex, that this conduct interfered with her work,
and that the employer knew or should have known of the harassment yet failed to take action.”
(See Doc. 14 at 17 (quoting Valentine-Johnson v. Roche, 386 F.3d 800, 813-14 (6th Cir. 2004));
Doc. 17 at 34.) Klein argues that her allegations are sufficient to state a claim and directs the
Court to paragraphs 17, 25-36 of the Complaint. These allegations do not plead a claim for
hostile work environment based on sexual harassment. Klein alleges only that it was “offensive
to her gender [female] to be supervised by an officer who exploited women through ‘trafficking in
persons’ prostitution.” (Doc. 33.) Nowhere in the Complaint does Klein allege that she was
subjected to unwanted sexual conduct. Klein’s Eighth Cause of Action is dismissed for failure to
state a claim under Rule 12(b)(6).
D. Other Issues Raised By Defendants
Defendants raised two additional pleading deficiencies in the Complaint – neither of which
are addressed in Klein’s memorandum in opposition.
First, Defendants argue that Klein improperly alleges her Fifth Cause of Action under the
Americans with Disabilities Act of 1990 (“ADA”), when it must be alleged under The
Rehabilitation Act. (Doc. 14 at 18-19.) In some paragraphs of the Complaint, Klein appears to
seek relief under both the ADA and the Rehabilitation Act. (See Doc. 1, ¶¶ 4, 19, 22.) In any
event, as this Court has held in two prior cases where Klein’s counsel represented other plaintiffs,
Klein cannot state a claim against a federal government agency for failure to accommodate her
medical condition under the ADA, but only under the Rehabilitation Act. See Hessel v. United
States Postal Service, Case No. 3:11-cv-14, *9 (S.D. Ohio December 22, 2011); Delroy v. United
States Postal Service, Case No. 3:11-cv-449, *5 (S.D. Ohio May 14, 2012). To the extent that
Klein asserts claims in the Fifth Cause of Action under the ADA, they are dismissed.
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Second, Defendants assert that Klein refers to Wright Patterson Air Force Base
(“WPAFB”) as a defendant in the Complaint, but did not name WPAFB as a party defendant.
Defendants are correct. Defendants also argue that, under the FTCA, the United States (not
WPAFB) “is the only proper defendant in a suit alleging negligence [or intentional torts] by a
federal employee.” (Doc. 14 at 18 (quoting Allegeier v. United States, 909 F.2d 869, 871 (6th Cir.
1990)). Under Title VII and the Rehabilitation Act, the only proper defendant is the Secretary of
the Air Force. (Doc. 14 at 18 (citing 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(1).) Thus, to
the extent any claims are asserted against WPAFB, they must be dismissed.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion (Doc. 14) in its
entirety and rules as follows:
The United States is SUBSTITUTED as a Party Defendant for the Individual
Defendants;
The First, Second, Third, Fourth, Seventh, and Eighth Causes of Action are
DISMISSED as to all Defendants;
The Fifth Cause of Action is DISMISSED to the extent that it asserts a claim under
the ADA, but it may proceed under The Rehabilitation Act as to only Defendant
James, Secretary of the Air Force; and
To the extent any claims are asserted against WPAFB, they are DISMISSED.
DONE and ORDERED in Dayton, Ohio, this Wednesday, November 4, 2015.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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