Davis v. United States

973 F.Supp.2d 23

Gracie Davis, Plaintiff,

v.United States, et al., Defendants.

Civil Action No. 13–1349 (ESH)

United States District Court, District of Columbia.

January 10, 2014

Gracie Davis, Alexandria, VA, pro se.

Javier M. Guzman, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

On August 29, 2013, plaintiff Gracie Davis filed a pro se complaint in D.C. Superior Court alleging that her supervisor and another manager at the Department of Veterans Affairs harassed her, ridiculed her, yelled at her, confined her against her will, and denied her union representation. ( See Compl. [ECF No. 1–1], at 6.) On the same day, she also filed a motion for a temporary restraining order to protect her from further harassment and abuse by these two individuals. ( See Mot. for TRO [ECF No. 1–2], at 2.) Pursuant to the Westfall Act, 28 U.S.C. 2769, the United States Attorney's Office for the District of Columbia certified that at the time of the underlying events, the named defendants were employees of the United States government acting within the scope of their employment. ( See Notice of Removal of a Civil Action [ECF No. 1], at 2.) Defendants removed the case to federal court and filed a motion to dismiss. ( Id.) For the reasons discussed below, this motion will be granted.

FACTUAL BACKGROUND

Plaintiff Gracie Davis is employed by the United States Department of Veterans Affairs (“VA”). On August 29, 2013, she filed a complaint in D.C. Superior Court against two of her co-workers, Christine A. Hernandez (her immediate supervisor) and Donyale E. Smith (another manager). Her complaint consisted of a one-page handwritten form, two “voluntary witness statements,” and three pages of medical records. ( See Compl. at 6–17.) Though the civil complaint form included a space to make a demand for damages, Davis left it blank. ( Id.)

In the complaint and the attached witness statements, Davis briefly described the two incidents that form the basis for her claim. Davis alleged that on August 7, 2013, Hernandez came to her office and became “very irate, yelling, pointing her finger and objects [including papers] in ... [Davis'] face.” (Compl. at 6.) She further alleged that Hernandez publicly berated her in front of her co-workers, threatened her, and also “impede[d] [her] personal body space ... [and] confined [and] pinned [her] to [her] desk ... against [her] will....” ( Id. at 6, 9) Davis was “so upset” that she was “relieved of duty and put on meds.” ( Id. at 6) On August 23, 2013, Davis called the Metropolitan Police Department after Hernandez and Smith allegedly “harassed [her], yell[ed] at [her], denied [her] union representation ... [and] held [her] in a room against [her] will. ( Id. at 6, 15). In addition to filing the complaint form, Davis also filed a motion for a Temporary Restraining Order (“TRO”) seeking an “order[ ] of protection” to prevent further “harass [ment] and abuse” by Hernandez and Smith. (Mot. for TRO at 2.)

On September 6, 2013, Daniel F. Van Horn, the Chief of the Civil Division of the United States Attorney's Office for the District of Columbia, certified that Smith and Hernandez were federal employees acting within the scope of their employment when the underlying incidents occurred. (Notice of Removal at 2.) Based on this certification, the United States was substituted as the defendant and the case was removed to federal court. See 28 U.S.C. § 2679(d)(2). Plaintiff then filed a motion to remand the case to D.C. Superior Court, which this Court denied on October 24, 2013. (Order [ECF No. 8].)

The precise contours of plaintiff's legal claims are not entirely clear from her complaint, motion for a TRO, or the opposition filed in response to defendant's motion to dismiss. ( See Notice of Request for Denial of Defs. Request of Dismissal of Pltf.'s Current Case Moved by Defs. to the Washington DC Federal Court [ECF No. 10] (“Opp.”).) That said, the Court must construe a pro se plaintiff's motion broadly and look to the relief sought to infer the claims made wherever possible. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); Bradley v. Smith, 235 F.R.D. 125, 127 (D.D.C.2006) (“[P]leadings filed by pro se litigants are liberally construed, and are held to less stringent standards than are applied to pleadings prepared by attorneys.”). Applying this standard, the Court will view Davis' complaint as alleging all possible legal theories that could apply: (1) intentional torts (battery, assault, false imprisonment, and intentional infliction of emotional distress); (2) discrimination in violation of Title VII (harassment and hostile work environment); (3) a violation of the Administrative Procedure Act; and (4) a violation of her right to due process under the Fifth Amendment. The Court will consider each of these claims in turn.

ANALYSIS

I. STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(1), plaintiffs must demonstrate that the court has jurisdiction. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C.Cir.2008). Since district courts are courts of limited jurisdiction, the inquiry into “subject matter jurisdiction is, of necessity, the first issue for an Article III court.” Loughlin v. United States, 393 F.3d 155, 170 (D.C.Cir.2004) (internal quotation marks omitted). In “determining the question of jurisdiction, federal courts accept the factual allegations contained in the complaint as true.... Moreover, the Court can consider material outside of the pleadings when determining whether it has jurisdiction.” Halcomb v. Office of the Senate Sergeant–at–Arms, 563 F.Supp.2d 228, 235 (D.D.C.2008).

To survive a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This facial plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955,). “[A] complaint [does not] suffice if it tenders ‘naked assertions' devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (some alteration marks omitted). In addition to the allegations made within the four corners of plaintiff's complaint, the Court is permitted to consider “any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” See EEOC v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C.Cir.1997).

II. Plaintiff's Battery, Assault, False Imprisonment, and IIED Claims

Though she failed to include any specific damage demand in her complaint, the Court will construe Davis' complaint as alleging that Hernandez and Smith committed the intentional torts of battery, assault, false imprisonment and intentional infliction of emotional distress (“IIED”) during the two incidents described above.¹ Yet, because the named defendants committed the underlying acts during the course of their government duties and plaintiff is herself a federal employee, the Court lacks subject-matter jurisdiction over these claims to the extent they seek money damages.²

Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, federal employees have absolute immunity for torts committed during the course of their official duties. See Osborn v. Haley, 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) (citing 28 U.S.C. § 2679(b)). Where, as in this case, the Attorney General or his designee certifies that the actions of government employees for which they are being sued were taken in the course of their official duties, the “employee[s are] dismissed from the action, and the United States is substituted as defendant in place of the employee[s].” ³Osborn, 549 U.S. at 230, 127 S.Ct. 881.

It is well-established that under the doctrine of sovereign immunity, an individual may not bring a tort claim against the federal government absent an explicit waiver by Congress. See, e.g., FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit. Sovereign immunity is jurisdictional in nature.” (internal citations omitted)). Where a plaintiff seeks money damages for torts committed by federal employees in the course of their employment, they must rely on the waiver of sovereign immunity found in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). However, plaintiff is unable to rely on the FTCA to bring her tort claims for three reasons.

First, she is a federal employee and under the Federal Employees Compensation Act (“FECA”), 5 U.S.C. § 8101, et seq., federal employees are statutorily precluded from bringing suits for money damages for injuries sustained during the course of their employment.⁴See id. § 8116(c); Aviles–Wynkoop v. Neal, ––– F.Supp.2d ––––, ––––, 2013 WL 5739214, at *2 (D.D.C. Aug. 27, 2013). Second, the FTCA expressly excludes from its waiver of sovereign immunity cases “arising under” intentional torts including battery, assault, and false imprisonment unless such acts are committed by “investigative or law enforcement officers.” See Tolson v. Stanton, 844 F.Supp.2d 53, 57 (D.D.C.2012) (citing 28 U.S.C. § 2680(h)). Because neither Hernandez nor Smith are investigative or law enforcement officers, the plaintiff has no basis on which to rely on the FTCA waiver of sovereign immunity for her battery, assault, and false imprisonment claims. Third, in order to...