Nicholaou v. United State of America

Filing 45

ORDER granting 36 Motion for Summary Judgment. Plaintiff's complaint is hereby dismissed with prejudice. Signed by Magistrate Judge Cecilia M. Romero on 9/13/21. (jwt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
GEORGE NICHOLAOU,

ORDER GRANTING [36] MOTION FOR
SUMMARY JUDGMENT

Plaintiff,
v.
Case No. 1:18-cv-00072-CMR
UNITED STATES OF AMERICA,
Defendant.

Magistrate Judge Cecilia M. Romero

Before the court is Defendant United States of America’s (Government or Defendant)
Motion for Summary Judgment (Motion) (ECF 36) before the undersigned by the consent of the
parties pursuant to 28 U.S.C. § 636(c) (ECF 11). Pursuant to Rule 7-1(f) of the Rules of Practice
for the United States District Court for the District of Utah (Local Rules), the court concludes
that oral argument is not necessary and will determine the pending Motion based on the written
memoranda. For the reasons discussed herein, the court GRANTS the Motion.
I.

PROCEDURAL BACKGROUND

Plaintiff George Nicholaou (Plaintiff or Mr. Nicholaou), a former employee of the
Government’s contractor STS Systems Integration (SSI) filed his original complaint (Complaint)
against Defendant Chalon Keller (Keller) in Utah State Court Second Judicial District (ECF 5-1).
Plaintiff’s Complaint alleges that Keller, then an Air Force Civilian employee, improperly
interfered with Plaintiff’s employment relationship resulting in Plaintiff’s termination (ECF 5-1).
The Government filed a Notice of Removal asserting that Keller was acting within the scope of
her employment at the time of the events on which Plaintiff’s claims are based (ECF 2). The
Government then certified—through the United States Attorney—that Keller was acting within
the scope of her employment (ECF 2 at Ex. B), and invoked the Federal Torts Claims Act

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(FTCA) (ECF 23 at 8-9). Upon this certification, the FTCA provides that the government is
substituted as the defendant and the case is removed to federal court. 28 U.S.C. §1346(b)(1).
Thereafter, the Government filed a Motion to Dismiss asserting sovereign immunity against any
claim for any interference-with-employment (ECF 22, 23). The court held a hearing on
Defendant’s Motion to Dismiss and determined that it was appropriate to convert the Motion to
Dismiss to a Rule 56 motion for summary judgment and, at the Plaintiff’s request, invited the
parties to submit a motion for summary judgment and response that complied with Local Rule
56-1 (ECF 34, 35).
On September 15, 2020, Defendant filed the pending Motion (ECF 36) asserting
Defendant was entitled to summary judgment because: (1) the undisputed material facts establish
that Keller was acting within the scope of her employment at all relevant times and thus this case
can proceed only against the Government under the FTCA and; (2) the court lacks subject-matter
jurisdiction over Plaintiff’s claim because the FTCA does not waive the United States’ sovereign
immunity from Plaintiff’s interference-with-employment claim. Plaintiff disputes these claims
(ECF 41).
II.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual
dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998). In determining whether there is a genuine dispute as to material fact, the court should
“view the factual record and draw all reasonable inferences therefrom most favorably to the
nonmovant.” Id. Defendant bears the initial burden of showing an absence of evidence to

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support Plaintiff’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving
party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue
for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325).
III.

UNDISPUTED MATERIAL FACTS1

The following material facts are uncontroverted, or, where disputed, viewed in the light
most favorable to Plaintiff, the nonmoving party:
From 2012 until April 23, 2014, Plaintiff was employed by military contractor SSI as an
F-16 Aircraft Configuration Manger at SSI’s Hill Air Force Base Government Contracting
Office. During this period, Steve Doneghy (Doneghy) was employed by SSI as general manager
and had supervisory authority over Plaintiff. SSI and Doneghy’s point of contact at Hill Air
Force Base was Government Contracting Office Representative Clayton Archuleta (Archuleta).
During the relevant period, Keller was employed as the Deputy Director/Acting Chief of the Hill
Air Force Base International Branch and Plaintiff was a member of one of the teams Keller
supervised. Keller’s job responsibilities included protecting and preserving Air Force property
and personnel, reporting suspected abuse of personnel, and generally reporting other security
concerns to the proper authorities (ECF 36 at Ex. H).
On March 1, 2013, during his employment with SSI, Plaintiff had a conversation with
Hill Air Force Base International Branch employee Cathy Hansing (Hansing) who had recently
been selected to fill a position as the Greece Program Manager with the Air Force. Hansing was
selected to replace the incumbent supervisor over the group of Air Force personnel that Plaintiff

When not directly cited, the court’s undisputed facts are drawn from the Motion (ECF 36), Plaintiff’s Opposition
to Motion for Summary Judgement (ECF 41) and Defendant’s Reply Memorandum (ECF 44). The parties’ briefing
included several additional undisputed facts that the court has concluded are not material to resolution of the Motion
and are therefore not referenced herein.
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worked with. During the conversation, Plaintiff expressed to Hansing, with some visible
emotion, that he believed her predecessor had been subject to unfair and inaccurate criticisms by
senior management. A few days later, Plaintiff was informed that Hansing had felt intimidated
by the March 1, 2013, conversation with Plaintiff. Plaintiff was reprimanded and instructed by
Doneghy to apologize to Hansing.2
On April 17, 2014, Plaintiff had an encounter with a Hill Air Force Base employee,
Martin Peters (Peters) while the two were driving into work (Parking Lot Encounter). Plaintiff
accused Peters of running him off the road and confronted him in a verbal altercation outside of
their respective office buildings where Plaintiff shouted his anger with use of profanities and
expletives about the way Peters drove. The Parking Lot Encounter concluded with both Peters
and Plaintiff walking into their respective office buildings.
Peters did not report the Parking Lot Encounter to any supervisor or security personnel.
Plaintiff reported the Parking Lot Encounter to Section Chief Russell Oster and to the
Motorcycle Safety Manager on the base. The Motorcycle Safety Manager reported the Parking
Lot Encounter to a supervisor, who then reported the Parking Lot Encounter to Jimi Pascow
(Pascow) (ECF 36, Ex. G at 24:11-15).
Later in a staff meeting in which Keller, Peters, Pascow, and others were present, Pascow
referred to the Parking Lot Encounter. (ECF 36, Ex. G at 24:15-17). Colonel Mark Mol
(Colonel Mol), the senior official at the staff meeting, asked what happened and Peters reported
his version of the Parking Lot Encounter. (ECF 36, Ex. G at 24:23-25:18). Colonel Mol then
asked Christy Smittle (Smittle), Chief of the F-16 Government Contracting Branch, to
investigate the matter and “take care of it.” (ECF 36 at Ex. 26:11-14).

2

This event is hereafter referred to as the March 2013 Hansing Encounter.

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Keller became aware of Plaintiff’s report regarding the Parking Lot Encounter.
Thereafter, either later on April 17 or on April 18, Keller informed Peters he should prepare a
statement of the Parking Lot Encounter. Although Keller did not supervise personnel in Peters’
organization, she informed Peters that he should write a report to protect himself (ECF 36, Ex. F
at 10:15-11:20). Peters thereafter prepared a written statement dated April 18, 2014. At
Smittle’s request, on April 21, 2014, Keller forwarded Peters’ statement regarding the Parking
Lot Encounter to Smittle, Archuleta’s Supervisor. In the transmittal email, Keller noted that she
was “concerned about [Plaintiff’s] temper” and that Plaintiff had previously exhibited “hostile
and inappropriate” behavior in the workplace—referring to the March 2013 Hansing Encounter
(ECF 41, Ex. 16; ECF 36, Ex. G at 33:4-15). Smittle forwarded Keller’s email with Peters’
statement to Archuleta.
After reviewing Peters’ statement, on April 21, 2014, Archuleta sent an email to Doneghy
stating that Plaintiff “took an aggressive and extremely unprofessional approach to handling” the
Parking Lot Encounter and consequently several individuals did not feel comfortable around him
(ECF 36, Ex. J). Archuleta’s email also specifically requested “that SSI consider removing Mr.
Nicholau from the subject contract.” (Id.). Doneghy considered the information Archuleta
provided and spoke with Plaintiff about the Parking Lot Encounter. Doneghy determined that
Plaintiff could not continue in his assignment at Hill Air Force Base based on his behavior and
that Plaintiff let his temper “get out of control.” (ECF 36, Ex. B at 51--53). The following day
Dongehy notified Plaintiff that his employment with SSI was terminated. On April 23, 2014,
Plaintiff received a termination letter from SSI which indicated his dismissal was at the request
of the Government Contracting Office based on threats Plaintiff made to an Airforce employee.

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IV.

DISCUSSION

A. The Undisputed Facts show Keller was acting within the scope of her employment.
The Government argues that Plaintiff’s claim against Keller was appropriately certified to
proceed under the FTCA with the Government substituted as the defendant because Keller was
acting within the scope of her federal employment in learning of the Parking Lot Encounter
during the staff meeting, advising Peters to prepare a statement regarding the incident, and
responding to Smittle’s request for information about Plaintiff. Plaintiff contends that Keller’s
conversation with Peters regarding the Parking Lot Encounter creates a reasonable inference that
her personal animus toward Plaintiff caused her to act outside her scope of employment to cause
Plaintiff’s employment termination and her motivations were not intended to advance the best
interests of the Air Force.
The Government’s certification is prima facie evidence that the employee was acting
within the scope of his or her employment. Richman v Straley, 48 F.3d 1139, 1145 (10th Cir.
1995). Once this certification is made, the plaintiff then carries the burden of demonstrating that
the federal employee was not acing within the scope of employment. Id. When a plaintiff
challenges the Government’s certification, a federal employee’s scope of employment is
determined by reference to the law of the state where the events alleged in the complaint
occurred. Id. Here, the events alleged in the Complaint occurred on Hill Air Force Base in Utah
and therefore Utah law applies.
Under Utah law, in determining whether an employee’s conduct is within the scope of his
or her employment the court should consider: (1) whether the employee’s conduct is of the
general kind she is employed to perform; (2) whether the conduct in question occurred during

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normal work hours and in the ordinary work location;3 and (3) whether the employee’s conduct
was motivated by an intent to further the employer’s interest. Brinker v. Salt Lake Cnt’y, 771
P.2d 1053, 1056-67 (Utah 1989). As outlined below, Plaintiff has failed to demonstrate Keller’s
actions do not comport with these factors.
1. Keller’s conduct was of the general kind she was employed to perform.
Defendant contends Keller’s involvement in the circumstances surrounding Plaintiff’s
termination was limited to: (1) being informed of the Parking Lot Encounter; (2) requesting a
statement from Peters of his recollection of the Parking Lot Encounter; and (3) forwarding
Peters’ statement regarding the Parking Lot Encounter to Smittle noting that Plaintiff had
previously exhibited “hostile and inappropriate” behavior in the workplace (ECF 36). Plaintiff
does not dispute these facts and does not argue Keller’s actions were not the type she was
employed to perform. Rather, Plaintiff argues Keller’s actions were based on her own personal
animus against Plaintiff and therefore not within the scope of her employment. At all relevant
times, Keller was employed as the Deputy Director/Acting Chief of the Hill Air Force Base
International Branch and was charged with ensuring the organization’s mission is fulfilled in a
timely and efficient manner (ECF 36, Ex. H). The undisputed material facts demonstrate, and
Plaintiff did not contest, that Keller’s actions—requesting a statement regarding an incident on
the premises from an employee and forwarding that statement to another supervisor—were of the
general kind a supervisor is employed to perform. The undisputed facts therefore demonstrate

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Neither party argues Keller’s alleged wrongful conduct occurred outside of regular working hours, and it is not
disputed that the alleged conduct occurred at Hill Air Force Base. Notwithstanding, the Utah Supreme Court has held
an agent need not be acting “within the hours of the employee's work and the ordinary spatial boundaries of the
employment” in order to be acting within the course of his employment. M.J. v. Wisan, 371 P.3d 21, 32 (Utah 2016)
(citing Brinker, 771 P.2d at 1057). The court will therefore not make a determination as to the second factor.

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that Keller’s conduct was within the scope of her employment in ensuring appropriate workplace
behavior and therefore supports the United States’ certification under the FTCA.
2. Plaintiff has failed to show Keller’s conduct was motivated by a personal animus
and not an intent to further her employer’s interest.
Plaintiff contends that Keller’s conduct was based on a personal animus toward Plaintiff,
and she therefore orchestrated Plaintiff’s termination. Plaintiff claims Keller’s actions were not
motivated by an intent to further the interest of the Air Force and that she was therefore acting
outside the scope of her employment (ECF 41). Plaintiff argues that under the Supreme Court’s
reasoning in Staub v. Proctor Hospital, there is a triable issue of material fact as to whether
Keller’s actions were intended to cause an adverse employment action and were the proximate
cause of Plaintiff’s termination. See 562 U.S. 411 (2011) (holding that if supervisor performs an
act motivated by antimilitary animus that is intended to cause adverse employment action, and if
that act is proximate cause of ultimate employment action, then employer is liable under the
Uniformed Services Employment and Reemployment Rights Act (USERRA), notwithstanding
that the supervisor did not make the ultimate employment decision). Plaintiff’s reliance on the
Staub case is misplaced. First, Staub is factually and procedurally different than the present
matter. In Staub, the plaintiff filed a claim against a private employer for discrimination under
USERRA. Id. Unlike in Staub, the relevant inquiry here is whether the United States has been
properly substituted as defendant under the FTCA—not whether the United States, as Keller’s
employer, may be liable under USERRA. Second, even assuming it were appropriate to look to
the analysis of Staub under the facts of this case, Plaintiff has failed to demonstrate an issue of
fact that Keller’s acts were motivated by a personal animus or intended to cause adverse
employment action that was the proximate cause of Plaintiff’s termination.

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In challenging the Government’s certification under the FTCA, Plaintiff must
demonstrate a genuine issue of material fact showing Keller was not acting with an intent to
further her employer’s interest. Under Utah law, Plaintiff can demonstrate this by showing “the
employee acts ‘from purely personal motives ... in no way connected with the employer’s
interests’ or if the conduct is ‘unprovoked, highly unusual, and quite outrageous.’” Jensen v.
Xlear, Inc., No. 2:19-CV-413, 2020 WL 2431239, at *4 (D. Utah May 12, 2020) (quoting
Birkner, 771 P.2d at 1057). Plaintiff has failed to do so.
Keller’s involvement following the Parking Lot Encounter was not only limited, but
appropriate. Upon learning of the Parking Lot Encounter which involved Plaintiff (a member of
one of the teams Keller supervised) and Peters, Keller informed Peters he should write a
statement then forwarded it onto to Smittle, who Colonel Mol had tasked with dealing with the
matter. Keller’s limited involvement in the investigation into the Parking Lot Encounter and her
email to Smittle are not highly unusual or outrageous. Rather, Keller was furthering the interests
of the Air Force by fulfilling her supervisory role of investigating possible abuse and security
concerns.
Plaintiff’s argument that Keller embellished Plaintiff’s history of workplace conduct is
also not supported by the record. First, Keller did not put in motion the investigation, Colonel
Mol made that decision. Second, it is undisputed that when Keller sent Smittle the email
transmitting Peters’ statement, she was referring to the March 2013 Hansing Encounter. Keller
did not misreport the March 2013 Hansing Encounter.
Finally, the record does not support that Keller terminated Plaintiff or that her
involvement put into motion Plaintiff’s termination. It is undisputed that Doneghy made the
decision to terminate Plaintiff based on Plaintiff’s behavior and temper. Dongehy’s point of

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contact with Hill Air Force Base was Archuleta, not Keller. Archuleta independently referred to
Plaintiff’s temper and prior “hostile and inappropriate workplace behavior” in his email to
Doneghy. Accordingly, the undisputed material facts do not support Plaintiff’s arguments that
Keller’s actions were the proximate cause of his termination, but rather, show that Keller was
motivated by an intent to further her employer’s interest.
In sum, Plaintiff has failed to meet his burden of showing a genuine dispute of fact as to
whether Keller’s actions were within the scope of her employment. The Government is therefore
entitled to judgment as a matter of law on Plaintiff’s challenge to the United States’ certification
and substitution as defendant under the FTCA.
B. The Government has not waived its sovereign immunity as to Plaintiff’s claims.
The United States, as sovereign, is immune from suit except to the extent it has waived its
immunity. Garling v. United States Environmental Protection Agency, 849 F.3d 1289, 1294
(10th Cir. 2017) (citing United States v. Orleans, 425 U.S. 807, 814 (1976)). The FTCA is a
limited waiver of sovereign immunity, making the Federal Government liable to the same extent
as a private party for certain torts of federal employees acting within the scope of their
employment. Id. However, one exception to the FTCA waiver is when a claim arises out of an
interference with contract rights. 28 U.S.C. § 2680(h). Courts in the Tenth Circuit have
regularly held that allegations of interference with current or perspective employment relations
fall within this exception to the FTCA waiver. See, e.g. Aviles v. Lutz, 887 F.2d 1046, 1049
(10th Cir. 1989). In the absence of a waiver, the court lacks jurisdiction over a matter. Id.
Here, Plaintiff’s Complaint alleges his employment as a federal contractor was
terminated due to Keller’s actions (ECF 5-1). Specifically, Plaintiff alleges Keller intentionally
interfered with his employment relationship with SSI and prospective employment opportunities

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with other military contractors (ECF 5-1 at ¶ 34). These allegations fall within the FTCA’s
waiver exclusion of claims for “interference of contract rights.” Id. (holding plaintiff’s
allegation that government attorneys interfered with his right to contract for government
employment falls within the exceptions to the FTCA waiver under 28 U.S.C. § 2680(h)).
Plaintiff’s single cause of action is not one for which the United States has waived its sovereign
immunity and therefore, the court lacks jurisdiction over Plaintiff’s claims and summary
judgment in favor of the Government is warranted.
ORDER
For the foregoing reasons, Defendant’s Motion for Summary Judgement (ECF 36) is
GRANTED. Plaintiff’s Complaint is hereby dismissed with prejudice.

IT IS SO ORDERED.
DATED this 13 September 2021.

Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah

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