Ziya v Global Linguistic Solution/Dyn Corporation International, et al
Filing
152
OPINION AND ORDER: I GRANT defendants Motion to Dismiss 106 . Plaintiffs tort claims against the United States are DISMISSED with prejudice. The United States shall respond to Ms. Ziyas construed motion for review of the scope-of-certification decisions as to SGM Serna and SFC Letendre within 30 days. Plaintiffs sexual harassment, retaliation, and gender, ethnic, national origin, and disability discrimination claims against the United States are DISMISSED with prejudice. Signed on 5/15/12 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MARLENE ZIYA,
Plaintiff,
No. 3:11-cv-01398-MO
v.
OPINION AND ORDER
GLOBAL LINGUISTIC SOLUTION, et al.,
Defendants.
MOSMAN, J.,
Defendant United States moves to dismiss [106] pro se plaintiff Marlene Ziya’s claims
pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6).
BACKGROUND
This dispute arose during Ms. Ziya’s employment with defendants Global Linguistic
Solution (“GLS”) and its subcontractor, Thomas/Wright Inc., who hired plaintiff to work as a
translator for the United States Government in Baghdad, Iraq. (First Am. Compl. [16] ¶ 1, 9).
She began working overseas on May 11, 2009, in the G-2 office, which is the staff section
responsible for military intelligence in a United States Army unit. (Id. at ¶ 7); (Def.’s Mem. in
Supp. [107] 3). On September, 18, 2009, plaintiff was fired by Sergeant Major (“SGM”)
Bernardo Serna, one of the G-2 office supervisors. (Id.).
1 – OPINION AND ORDER
Plaintiff alleges SGM Serna, and a second G-2 office supervisor, Sergeant First Class
(“SFC”) Susan Letendre: discriminated against her and bullied her at work; wrongfully accused
her of poor work performance and encouraged GLS to terminate her employment; encouraged
others to assault and harass her; and created a sexually hostile work environment. (Id. at. ¶¶ 3, 4,
5, 10, 11, 13). Plaintiff also alleges that the GLS civilian site managers, Mr. Rodriquez and Ms.
Hatithi, did nothing to stop the harassment. (Id. at ¶ 6).
Plaintiff originally brought this suit against SGM Serna and SFC Letendre. On February
7, 2012, I entered an Order of Substitution [88], substituting the United States as the defendant in
the place of both SGM Serna and SFC Letendre, and dismissed plaintiff’s claims with prejudice
against both of these individuals. On March 6, 2012, the United States moved to dismiss
plaintiff’s complaint for lack of jurisdiction and failure to state a claim. Plaintiff filed a Response
[136] on April 17, 2012.
DISCUSSION
Plaintiff alleges the following claims for relief against the United States: (1) intentional
infliction of emotional distress; (2) slander and libel; (3) assault; and (4) sexual harassment,
retaliation, and gender, ethnic, national origin, and disability discrimination.
I.
Tort Claims
The Federal Tort Claims Act (“FTCA”) “permits suits against the United States for
injuries caused within a government employee's scope of employment. Kashin v. Kent, 457 F.3d
1033, 1036 (9th Cir. 2006) (citing 28 U.S.C. § 1346(b)(1)). However, the FTCA “does not waive
the sovereign immunity of the United States if the tort was committed in a foreign country. Id. at
1037 (citing 28 U.S.C. § 2680(k)). In cases involving a foreign tort, therefore, if the Department
of Justice certifies that an employee was acting within the scope of employment, and the United
2 – OPINION AND ORDER
States is substituted as the defendant, the action is dismissed because the United States retains its
sovereign immunity. Id. (“[A] grant of certification sounds the death knell for lawsuits involving
foreign torts.”). In this case, the alleged torts were committed in Iraq; the Department of Justice
certified that SGM Serna and SFC Letendre were acting within their employment; and the United
States was substituted as the defendant. (Order of Substitution [88] 1). Therefore, I lack
jurisdiction over plaintiff’s intentional infliction of emotional distress, slander and libel, and
assault claims against the United States and dismiss them with prejudice pursuant to Fed. R. Civ.
P. 12(b)(1).
However, I note that in response [136] to defendant’s motion to dismiss, plaintiff
included a “motion” to “reinstate Bernardo Serna as a defendant,” arguing that SGM Serna’s
actions were not within the scope of his employment. (Pl.’s Resp. [136] 4). In Gutierrez de
Martinez v. Lamagno, the United States Supreme Court held that “scope-of-employment
certification is reviewable.” 515 U.S. 417, 420 (1995). I will construe plaintiff’s motion in her
response as a request to review the Department of Justice’s scope-of-employment certification as
to both SGM Serna and SFC Letendre.1 Accordingly, while I dismiss plaintiff’s tort claims
against the United States with prejudice, my holding has no bearing on the issue of whether
SGM Serna was acting within the scope of his employment at the time of the alleged torts in this
case.
II.
Discrimination, Retaliation and Sexual Harassment Claims
I previously dismissed Ms. Ziya’s Title VII claims with regard to the motions to dismiss
filed by defendants Global Linguistic Solution and Thomas/Wright Incorporated. See (Opinion
1
While plaintiff only references SGM Serna in her response [136] to the Government’s motion
to dismiss, she also filed a response [144] to the Government’s Motion to Quash [137] in which
she argues that SFC Letendre was not acting within the scope of employment.
3 – OPINION AND ORDER
and Order [134] 5-6). As stated, Ms. Ziya failed to exhaust her administrative remedies and to
receive a right-to-sue letter before she filed this suit. For the same reason, I dismiss with
prejudice Ms. Ziya’s sexual harassment, retaliation, and gender, ethnic, national origin, and
disability discrimination claims against the United States.
CONCLUSION
I GRANT defendant’s Motion to Dismiss [106]. Plaintiff’s tort claims against the United
States are DISMISSED with prejudice. The United States shall respond to Ms. Ziya’s construed
motion for review of the scope-of-certification decisions as to SGM Serna and SFC Letendre
within 30 days. Plaintiff’s sexual harassment, retaliation, and gender, ethnic, national origin, and
disability discrimination claims against the United States are DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this
15th
day of May, 2012.
/s/ Michael W. Mosman______
MICHAEL W. MOSMAN
United States District Court
4 – OPINION AND ORDER
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