Loehndorf v. Williams
Filing
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ORDER GRANTING MOTION TO DISMISS, by Judge James L. Robart. (MD)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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SCOTT A. LOEHNDORF,
Plaintiff,
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UNITED STATES OF AMERICA,
Defendant.
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ORDER GRANTING MOTION
TO DISMISS
v.
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CASE NO. C14-0106JLR
Before the court are two motions: (1) Plaintiff Scott Loehndorf’s motion
16 challenging the government’s scope-of-employment certification (Pltf. Mot. (Dkt. # 9));
17 and (2) Defendant United States of America’s motion to dismiss (Mot. to Dismiss (Dkt.
18 # 13)). The court has considered both motions, the governing law, the record, and all
19 submissions supporting and opposing the motions. Considering itself fully advised, the
20 court DENIES Mr. Loehndorf’s motion, GRANTS the United States’ motion, and
21 dismisses this case.
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ORDER- 1
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I.
INTRODUCTION
This is a defamation case set aboard the U.S.S. Nimitz, a nuclear-powered aircraft
3 carrier that is one of the largest warships in the world. At the time of the alleged
4 defamation, both Mr. Loehndorf and Ms. Williams were active members of the United
5 States Navy serving aboard the U.S.S. Nimitz. (See Compl. (Dkt. # 1-2) ¶¶ 3.2-3.3.)
6 Plaintiff Scott Loehndorf was Damage Controlman First-Class, and Ms. Williams was
7 Damage Controlman Third-Class. (Id.) Mr. Loehndorf was Ms. Williams’ direct-line
8 supervisor. (Id. ¶ 3.4.)
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While serving aboard the U.S.S. Nimitz, Ms. Williams was allegedly carrying on
10 an adulterous relationship with another Damage Controlman named Wesley Myers. (Id.
11 ¶ 3.5.) The alleged relationship violated military rules and became the subject of an
12 investigation. (Id. ¶¶ 3.5-3.7.) As part of the investigation, Mr. Loehndorf, as Ms.
13 Williams’ commanding officer, was asked to provide command with a sworn statement
14 regarding the relationship. (Id. ¶ 3.8.) He did so. (Id.) In the statement, he indicated
15 that there was a perception of fraternization between Ms. Williams and Mr. Myers. (Id.)
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Mr. Loehndorf alleges that Ms. Williams then retaliated against him for this
17 statement. After the statement was made, Ms. Williams made an informal complaint of
18 sexual harassment against Mr. Loehndorf, which was resolved informally. (Id. ¶ 3.11.)
19 She revived her complaint roughly three months after that, claiming that Mr. Loehndorf
20 “continued to touch her inappropriately and violate her boundaries.” (Id. ¶ 3.13.) She
21 eventually filed a formal sexual harassment complaint, alleging that Mr. Loehndorf had
22 sexually harassed her on more than one occasion. (Id. ¶¶ 3.14-3.16.)
ORDER- 2
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Mr. Loehndorf brought this action against Ms. Williams in King County Superior
2 Court. He alleges that Ms. Williams’ sexual harassment allegations were false, and that
3 she made them “intentionally, willfully and with malicious intent.” (Id. ¶¶ 4.2-4.4.) He
4 also claims that she fabricated the allegations for the purpose of distracting the ship’s
5 commanding officers from her own investigation. (See id.) He asserts claims for
6 defamation, false light, and negligent and intentional infliction of emotional distress. (Id.
7 ¶¶ 4.1-7.4.) He claims that he was denied a promotion because of the sexual harassment
8 allegations. (Id. ¶¶ 3.9-3.10, 8.1-8.2.) As damages, he claims he suffered wage loss,
9 emotional distress, and damage to his career. (See id.)
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Ms. Williams removed the case to federal court. (Not. of Removal (Dkt. # 1).)
11 The United States substituted itself as sole defendant pursuant to the Westfall Act, 28
12 U.S.C. § 2679. (Not. of Substitution (Dkt. # 2).) At that point, Ms. Williams ceased to
13 be a defendant in this action. (See id.)
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Motions soon followed. On February 10, 2014, Mr. Loehndorf filed a motion
15 challenging the government’s position that Ms. Williams was acting in the scope of her
16 employment. (Pltf. Mot.) On March 3, 2014, the United States filed a motion to dismiss
17 Plaintiff’s complaint. (Mot. to Dismiss.) The court heard oral argument on the motions
18 on April 21, 2014, and conducted an evidentiary hearing on July 22, 2014. (4/21/14 Min.
19 Order (Dkt. # 22); 7/22/14 Min. Entry (Dkt. # 27).) Both Mr. Loehndorf and Ms.
20 Williams testified at the hearing. (7/22/14 Min. Entry.)
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ORDER- 3
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II.
ANALYSIS
2 A.
Governing Law Under the Westfall Act
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This case is governed by the Westfall Act. The Westfall Act creates a species of
4 tort immunity for federal employees acting within the scope of their office or
5 employment. See, e.g., Osborne v. Haley, 549 U.S. 225, 245-47 (2007). As described
6 above, the immunity takes effect through the substitution of the United States as the
7 named defendant in a pending tort action. See id. Under the Westfall Act, an action
8 against a federal employee must be deemed an action against the United States if the
9 federal employee was acting “within the scope of his office or employment” at the time
10 of the alleged conduct. See 28 U.S.C. § 2679(d)(1). When the Act applies, the Attorney
11 General can certify that the defendant-employee was acting in the scope of his or her
12 employment, at which time the United States is substituted as the sole defendant in the
13 case:
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Upon 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 or proceeding
commenced upon such claim in a United States district court shall be
deemed an action against the United States under the provisions of this title
and all references thereto, and the United States shall be substituted as the
party defendant.
18 Id.; Pauly v. U.S. Dep’t of Agric., 348 F.3d 1143, 1150-51 (9th Cir. 2003) (citing 28
19 U.S.C. § 2679(d)(1)). This happened here. Shortly after removal, the Attorney General
20 certified that Ms. Williams was acting in the scope of employment with respect to the
21 allegations in Mr. Loehndorf’s complaint. (See Not. of Substitution at 3 (certification of
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ORDER- 4
1 Annette Hayes).) Accordingly, and pursuant to the Westfall Act, the court substituted the
2 United States as the sole defendant in this case. (1/27/14 Order (Dkt. # 5).)
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Mr. Loehndorf has challenged the government’s certification, as he has a right to
4 do. See Pauly, 348 F.3d at 1150-51. Upon a challenge, Mr. Loehndorf has the burden of
5 proving that the conduct underlying the tort claim occurred outside the scope of Ms.
6 Williams’ employment. See id. Following a challenge, state law governs the scope-of7 employment inquiry under the Westfall Act. Id. at 1151 (citing McLachlan v. Bell, 261
8 F.3d 908, 911 (9th Cir. 2001)). “Under Washington law, an employee acts within the
9 scope of his employment, even if his acts are contrary to instructions or constitute
10 intentional torts, when he is ‘engaged in the performance of the duties required of him by
11 his contract of employment’ or when ‘he [is] engaged at the time in the furtherance of the
12 employer’s interest.’” Id. (citing Dickinson v. Edwards, 716 P.2d 814, 819 (Wash.
13 1986)).
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From a procedural standpoint, this case is governed by the Supreme Court’s
15 decision in Osborne, 549 U.S. 225. In Osborne, the Supreme Court addressed what a
16 district court should do in the atypical situation where the government certifies that the
17 alleged tortious acts were within the scope of employment by simply denying that the
18 acts ever occurred. See id. at 246-47. In a more typical case, the alleged tort might be,
19 for example, an automobile accident. See id. at 251 n.15. In an automobile accident
20 case, the government can ordinarily make a scope of employment determination without
21 accepting or denying the critical allegations in the complaint—for example, that the
22 employee acted negligently. See id. This case, like Osborne, presents a different set of
ORDER- 5
1 facts. Here, the government denies the allegations in the complaint—specifically, the
2 allegation that Ms. Williams fabricated her sexual harassment claims. (See Mot. to
3 Dismiss at 9-11.) Moreover, the government’s certification is premised on this denial.
4 (See id.) This is the precise situation addressed in Osborne. See 549 U.S. at 245-47.
5 Accordingly, the procedure outlined in Osborne is the correct procedure here as well.
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Put simply, the Osborne procedure requires the court to resolve material factual
7 disputes. Id. at 248-252. Under Osborne, the court is required to resolve facts necessary
8 to determining whether the substitution was proper. Id. Here, that means the court must
9 make a factual determination about whether Ms. Williams’ conduct was within the scope
10 of her employment aboard the U.S.S. Nimitz. As the court in Osborne pointed out, this
11 determination must be made even if the factual dispute in question “goes to the heart of
12 the merits,” and even if finding certain facts might jeopardize an eventual jury trial. Id. at
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In this case, that means examining whether Ms. Williams fabricated her sexual
15 harassment allegations. If she did not, certification is proper because Ms. Williams
16 would have had a duty to report Mr. Loehndorf’s conduct to her supervisors: Article
17 1137 of the U.S. Navy Regulations required her to report to a superior immediately upon
18 learning of behavior constituting sexual harassment. (See Ruth Decl. (Dkt. # 14) at 12.)
19 Thus, under Washington law, if there was behavior constituting sexual harassment or if
20 Ms. Williams reasonable perceived that there was, Ms. Williams’ conduct was within the
21 scope of her employment. See Pauly, 348 F.3d at 1151. On the other hand, if Ms.
22 Williams fabricated the allegations, as Mr. Loehndorf alleges, her actions were outside
ORDER- 6
1 the scope of her employment. In that scenario, Ms. Williams would have had no duty to
2 report to her supervisors, and would have been acting purely in her own self-interest. See
3 id. If this were the case, certification would be improper.
Problematically, deciding this question requires examining issues that go to “the
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5 heart of the merits” of this case. See Osborne, 549 U.S. at 251-53. Specifically, the court
6 must examine whether Ms. Williams fabricated her sexual harassment allegations. This
7 is similar to the inquiry a jury would be required to make to decide Mr. Loehndorf’s
8 defamation claim and related claims. Nevertheless, Osborne requires the court to make
9 this determination even if doing so would eventually deprive Mr. Loehndorf of his right
10 to a jury trial. See id.
11 B.
Evidentiary Hearing
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In light of this state of affairs, the court held an evidentiary hearing. (See 7/22/14
13 Min. Entry.) Evidentiary hearings are mandatory in some circuits in this situation. See
14 Heuton v. Anderson, 75 F.3d 357 (8th Cir. 1996). Although the Ninth Circuit arguably
15 does not require a hearing, it is clear that evidentiary hearings are favored to resolve
16 disputed facts related to Westfall Act immunity. See Arthur v. U.S. ex rel. Veterans
17 Admin., 45 F.3d 292, 295 (9th Cir. 1995) (“[W]here disputed issues of fact exist relevant
18 to immunity, summary judgment will not be appropriate until the district court has held
19 an evidentiary hearing and resolved the disputes by formal findings.”); Lowery v.
20 Reinhardt, No. Civ. S-07-0880 RRB DAD, 2008 WL 550083, at *4 (E.D. Cal. Feb. 27,
21 2008).
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ORDER- 7
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The evidentiary hearing was limited in scope. This limitation was necessary to
2 avoid any complications regarding active-duty naval officers.1 The parties filed a
3 substantial amount of documentary evidence in this case. All of that evidence was part of
4 the record prior to the evidentiary hearing. Accordingly, the court heard testimony from
5 only Mr. Loehndorf and Ms. Williams at the hearing. No other witnesses were permitted
6 to testify.
7 C.
Findings From Evidentiary Hearing
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1. The testimony of both Mr. Loehndorf and Ms. Williams was largely consistent
with the documentary evidence presented. Neither party presented testimony
that was greatly at odds with the documentary evidence. Both parties’
testimony was largely consistent with each parties’ previously-presented
version of events.
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2. Mr. Loehndorf was not entirely credible. In part, this is due to omissions from
his testimony. Mr. Loehndorf never addressed most of the specific events
underlying Ms. Williams’ sexual harassment allegations. He never explained
any of the alleged behavior or addressed the events at the heart of the case.
Instead, he simply testified that he “never” sexually harassed Ms. Williams,
“never” touched her in a sexual way, and “did not” make any lewd or
otherwise suggestive comments to her. (Ev. Hearing Tr. at 59-60.) In
addition, Mr. Loehndorf made an “apology” for certain of the alleged acts and
pleaded guilty to certain charges of sexual harassment at a non-judicial
punishment proceeding called a “captain’s mast.” (Id. at 60-63.) His attempts
to explain his apology and guilty plea were not satisfactory and damaged his
credibility with the court. (Id.; id. at 66-71.) Further, Mr. Loehndorf’s
testimony was at times contradicted by documentary evidence, further
damaging his credibility. (Id. at 66, 86-88.) Mr. Loehndorf admits that he
violated an order to stay out of damage control spaces, and that this violation
formed the basis for one of his sexual harassment charges. (Id. at 74-80.) His
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At oral argument, counsel for Mr. Loehndorf represented that she could put on her case
without calling any active members of the Navy. Be that as it may, that would not have
21 guaranteed that the United States could put on an effective rebuttal case without doing the same.
Thus, the court restricted the scope of the evidentiary hearing given the unique circumstances of
the case and the substantial amount of evidence that was already in the record.
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ORDER- 8
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efforts to explain these incidents were not satisfactory and further damaged his
credibility with the court. (Id. at 101-03.)
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3. Ms. Williams was not completely credible either. For example, she testified
that her relationship with Mr. Myers did not begin until December, 2013.
However, this testimony appears to be contradicted by documentary evidence
in the record, which suggests her relationship with Mr. Myers may have begun
earlier. (Ev. Hearing Tr. at 33-36; see also Goeller Decl. (Dkt. # 10) at 4, 7,
10.) And while it is not necessary for the court to make a specific finding with
respect to the truth of this fact, Ms. Williams’ testimony on this topic, and her
unsatisfactory attempt to explain the apparent inconsistency, damaged her
credibility with the court. (Id. at 33-37.) On the other hand, much of Ms.
Williams’ testimony was forthright and credible, especially her testimony with
respect to life aboard the Nimitz, her relationships with other sailors, and her
interactions with Mr. Loehndorf.
4. In general, the witness’ testimony was consistent when it came to the basic
facts and chronology of events that form the basis of this action. The parties’
testimony mostly differed with respect to interpretation of those events. Ms.
Williams maintained that she felt sexually harassed and reported Mr.
Loehndorf’s behavior because she felt uncomfortable around Mr. Loehndorf.
On the other hand, Mr. Loehndorf testified that he never sexually harassed Ms.
Williams. This is consistent with the positions taken in the parties’ briefing.
5. Ms. Williams first brought Mr. Loehndorf’s behavior to the attention of her
superiors in April, 2012.
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6. Ms. Williams made an informal complaint of sexual harassment against Mr.
Loehndorf in July, 2012. Ms. Williams’ allegations were based on a series of
events that she perceived as sexual harassment. Ms. Williams alleged that, in
one such event, Mr. Loehndorf, who was drunk at the time, told Ms. Williams
he wanted to “smack [her] ass” and attempted to put his head on her shoulder.
(Id. at 20.) Ms. Williams also testified that there were incidents where Mr.
Loehndorf would touch her elbow, arm, and back after being told that such
touching was unwelcome. (Id.) She testified that he would touch her back
“slow and soft” and that she told him “numerous times” that she did not like it
and the touching would nevertheless continue. (Id. at 20-21.) Ms. Williams
also testified that there was an incident in which Mr. Loehndorf put a plastic
wad of trash in her coveralls. (Id. at 20.) All of this allegedly occurred during
the period of time when Mr. Loehndorf was Ms. Williams’ supervisor. (Id. at
21.) Due at least in part to the events described above, Ms. Williams testified
that she felt “uncomfortable and awkward.” (Id. at 20.)
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7. As a result of Ms. Williams’ initial informal complaint, Mr. Loehndorf was
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ORDER- 9
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placed on restrictions regarding Ms. Williams in July 2012. (Id. at 22.) He
was not allowed to be in her presence unless there was another male in the
vicinity. (Id.) He was not allowed to talk to her unless certain other conditions
were met, and he was not allowed to be her supervisor. (Id.) Ms. Williams
testified that Mr. Loehndorf violated these restrictions in numerous ways and
also continued to touch her. (Id. at 23-24.) She also testified that she received
a phone call from Mr. Loehndorf saying that he had called a wrong number but
that “it was really good to hear” her voice. (Id. at 24.)
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8. Ms. Williams testified that these events, among others, led her to file a formal
sexual harassment complaint in November 2012 because she was “fed up” that
the informal resolution “wasn’t working.” (Id. at 25.) She testified that she
was “feeling uncomfortable and . . . hated working there now.” (Id.)
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9. In “early 2012,” Mr. Loehndorf gave a statement to command regarding an
alleged relationship between Ms. Williams and Mr. Myers. (Id. at 53-54.) He
stated that there was a perception among the sailors that Ms. Williams and Mr.
Myers were involved in a romantic relationship. (Id. at 53-56.)
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10. Mr. Loehndorf testified that he understood sexual harassment is “in the eye of
the beholder.” (Id. at 89.) He also testified that he understood that if he were
put on notice that a subordinate woman did not want to be touched by him, it
would be inappropriate to touch her. (Id.) He testified that the U.S.S. Nimitz’
policy on sexual harassment mirrors the Navy’s policy—namely, that if a sailor
believes he or she is being sexually harassed, “it is in the eye of the beholder.”
(Id.)
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11. Mr. Loehndorf testified multiple times that Ms. Williams was “entitled to” her
belief that Mr. Loehndorf sexually harassed her and that, assuming this belief
was genuine, she had a duty to report Mr. Loehndorf’s actions to her
commanding officers. (Id. at 90.) He also testified that Ms. Williams’ beliefs
did not have to be substantiated or corroborated before she had a duty to report
them to her commanding officers, only that she needed to genuinely hold those
beliefs. (Id. at 91.) He further testified that if the acts alleged by Ms. Williams
did in fact occur, she would be justified in perceiving sexual harassment (id. at
93), and that Ms. Williams “could have” perceived some of his interactions
with her as sexual harassment. (Id. at 96-97.)
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D.
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Findings Based on Documentary Evidence
1. There were two command investigations into Mr. Loehndorf’s conduct. In the
first, Lieutenant Jason Scarborough found that Mr. Leohndorf was a
“touchy/feely” guy who never had any malicious or sexual intent toward Ms.
Williams. (Quinn Decl. (Dkt. # 24) Ex. 6 at 3-4.) Mr. Scarborough concluded
ORDER- 10
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that evidence of touching and other behavior was equivocal and that Mr.
Loehndorf should receive formal written counseling for his behavior. (Id. at
4.) In the second command investigation, Lieutenant Commander Ryan
Anderson found that Mr. Loehndorf attempted to put his head on Ms.
Williams’ shoulder and said he wanted to “smack [her] ass,” that Mr.
Loehndorf called Ms. Williams on the phone by mistake and told her it was
“good to hear [her] voice,” that Mr. Loehndorf said Ms. Williams “could have
perceived some of his interaction with her as sexual harassment but that was
not his intent,” that Mr. Loehndorf “is either not being truthful or possesses a
selective memory in relation to the number of times that he has touched [Ms.]
Williams . . . [and] whether he has made a lewd or sexual suggestive comment
to [Ms.] Williams,” and that “[Ms.] Williams’ claims constitute sexual
harassment.” (Id. Ex. 10 at 1-18.)
2. On January 28, 2013, the commanding officer of the U.S.S. Nimitz, J.S. Ruth,
issued a non-punitive letter of caution to Mr. Loehndorf adopting many of the
findings of the second command investigation. (Id. Ex. 12.)
3. On February 5, 2013, Mr. Loehndorf was the subject of a non-judicial
punishment proceeding called a “captain’s mast.” (Supp. Ruth Decl. (Dkt.
# 19-2) at 4-5.) At that proceeding, Mr. Leohndorf pled guilty to two charges
related to the alleged sexual harassment of Ms. Williams. (Id.)
4. On February 8, 2013, Mr. Ruth, issued a punitive letter of reprimand against
Mr. Leohndorf. (Ruth Decl. (Dkt. # 14).) In that letter, Mr. Ruth concludes
that (1) Mr. Loehndorf attempted to rest his head on Ms. Williams’ shoulder
and told her he wanted to “smack her ass” (id. at 5); (2) on numerous
occasions, Mr. Loehndorf touched Ms. Williams in ways that Mr. Loehndorf
knew were unwelcome (id. at 4-5); (3) Mr. Loehndorf told Ms. Williams on the
phone that, even though he had called a wrong number, it was “good to hear
[her] voice” (id. at 5); and (4) Mr. Loehndorf violated an order not to enter
damage control spaces when Ms. Williams was present (id.). Mr. Ruth
subsequently requested that Mr. Loehndorf be detached from the U.S.S. Nimitz
for cause. (Quinn Decl. Ex. 14.)
5. Mr. Loehndorf has appealed his non-judicial punishment several times, but to
date none of his appeals have been successful. (See, e.g., Supp Ruth Decl. at
11-26; Quinn Decl. Ex. 16; Goeller Decl. Ex. 1.)
6. Mr. Loehndorf at one point said that he was “sincerely remorseful” for his
actions, explaining that “What I meant by that statement was that I was sorry
that [Ms.] Williams felt uncomfortable around me as evidenced by the one
time I touched her during RIMPAC when she pulled away.” (Quinn Decl. Ex.
8 at 2.) This demonstrates that, at least at one point in time, Mr. Loehndorf
ORDER- 11
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acknowledged that some of his actions made Ms. Williams feel uncomfortable.
2 E.
Application of Law to Facts
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The question before the court is whether Ms. Williams was acting within the scope
4 of her employment when she reported allegations of sexual harassment by Mr. Loehndorf
5 to her superiors. “Under Washington law, an employee acts within the scope of h[er]
6 employment . . . when [s]he is ‘engaged in the performance of the duties required of [her]
7 by [her] contract of employment’ or when ‘he [is] engaged at the time in the furtherance
8 of the employer’s interest.’” Pauly, 348 F.3d at 1150-51. It is not disputed in this case
9 that if Ms. Williams felt she was being sexually harassed by Mr. Loehndorf, she had a
10 duty to report Mr. Loehndorf’s conduct to her superiors: Article 1137 of the U.S. Navy
11 Regulations requires her to report to a superior immediately upon learning of behavior
12 constituting sexual harassment. (See Ruth Decl. at 12.)
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Mr. Ruth, the U.S.S. Nimitz’ commanding officer, provided a summary of the
14 definition of sexual harassment in effect on the U.S.S. Nimitz:
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Sexual harassment has three elements, more specifically that: (1) the
behavior is unwelcome; (2) the behavior is sexual in nature; (3) the
behavior must occur in, or impact on, the work environment. In other
words, sexual harassment can be unwelcome verbal or physical conduct of
a sexual nature which has the purpose or effect of unreasonably interfering
with an individual’s work performance or otherwise creating an
intimidating, hostile or offensive working environment. The verbal or
physical conduct, to be actionable, need only be so severe or pervasive that
a reasonable person would perceive, and the victim does perceive, the work
environment as hostile or offensive.
(Quinn Decl. Ex. 12 at 2.) The definition makes clear that sexual harassment is, as Mr.
Loehndorf concedes (Ev. Hearing Tr. at 89), “in the eye of the beholder”:
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Unwelcome behavior is behavior that a person does not ask for and which
that person considers undesirable or offensive. Not everyone has the same
perception of “undesirable or offensive.” Since the person being subjected
to the behavior, the recipient, is the one being affected, it is the recipient’s
perception that controls. Using a “reasonable person standard,” from the
perspective of the recipient, is considered a common sense approach in
determining which behaviors might be considered sexual harassment. In
this regard, behavior which the recipient reasonably finds unwelcome
should be stopped.
6 (Quinn Decl. Ex. 12 at 3.) If Ms. Williams believed that Mr. Loehndorf’s conduct met
7 this standard, she had a duty to report his behavior to her superiors and was therefore
8 acting within the scope of her employment when she did so. Pauly, 348 F.3d at 1150-51;
9 (see Ruth Decl. at 12.)
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The court finds that Mr. Loehndorf has not proved the contrary. The court has
11 considered all of the evidence submitted in this case and has conducted an evidentiary
12 hearing. Having done all of this, and relying not only on the findings detailed above but
13 on the entire record in this case, the court concludes that Mr. Loehndorf has not met his
14 burden of proving that Ms. Williams acted outside the scope of her employment. In
15 doing so, the court does not find that Mr. Loehndorf’s behavior did or did not amount to
16 sexual harassment. Nor does the court find, specifically, that Ms. Williams did or did not
17 fabricate her sexual harassment allegations. These are not the precise questions before
18 the court. Rather, the court concludes that based on the evidence in the record, Mr.
19 Loehndorf has not met his burden of proving that Ms. Williams fabricated her sexual
20 harassment allegations or otherwise acted outside the scope of her employment.
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This finding is sufficient to sustain the substitution of the United States as the sole
22 party defendant in this case. See 28 U.S.C. § 2679(d)(1); Pauly, 348 F.3d at 1150-51. It
ORDER- 13
1 is also sufficient to dismiss the case since Mr. Loehndorf concedes that dismissal is
2 appropriate if the United States is the sole party defendant. (See Resp. to Mot to Dismiss
3 (Dkt. # 18).) Accordingly, this case is dismissed with prejudice.
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III.
CONCLUSION
For the reasons described above, the court DENIES Mr. Loehndorf’s motion
6 challenging substitution (Dkt. # 9) and GRANTS the United States’ motion to dismiss
7 (Dkt. # 13). This case is dismissed with prejudice.
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Dated this 30th day of July, 2014.
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JAMES L. ROBART
United States District Judge
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