Dominique v. United States

David Dominique, Plaintiff, v. United States of America, Defendant.

Case No. 18-cv-13777

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 20, 2021

Judith E. Levy United States District Judge

Mag. Judge Elizabeth A. Stafford

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [20]

Before the Court is Defendant United States of America's motion for summary judgment. (ECF No. 20.) The motion is fully briefed. For the reasons set forth below, Defendant's motion is GRANTED.

I. Background

This Federal Tort Claims Act (FTCA) case arises from a March 23, 2015 encounter at the Patrick V. McNamara Federal Building in Detroit, Michigan, between Plaintiff David Dominique and several Federal Protective Service (FPS) agents. Plaintiff challenges the FPS agents' conduct and asserts claims against Defendant of false arrest (Count I), false imprisonment (Count II), and intentional infliction of emotional distress (Count III). Defendant argues that it is entitled to summary judgment on Plaintiff's claims. Defendant also argues that it is entitled to governmental immunity. For the reasons that follow, the Court grants summary judgment to Defendant on part of Counts I and II and on all of Count III, and the Court finds that governmental immunity protects Defendant from liability on Plaintiff's remaining claims.

A. Plaintiff's Employment History

Plaintiff worked at the McNamara Building as an investigator for Homeland Security Investigations (HSI) between 2003 and 2014.¹ (See ECF No. 20-2, PageID.112-113, 127.) HSI's offices are located on the eighteenth floor. (See id. at PageID.110.) Plaintiff spent his first seven years with HSI in its cyber group primarily handling child pornography and child exploitation cases but also "some financial cases." (Id. at PageID.127.) He requested a transfer and then spent two to two-and-one-half years working in HSI's national security group until he wasterminated in 2014. (See id. at PageID.113, 127.) The reason given to Plaintiff for his termination was "[i]nability to perform my position as criminal investigator, and carry a weapon." (Id. at PageID.113.)

Plaintiff's investigator job with HSI was a law enforcement position. (See id.) He started working as a law enforcement officer in 1991. (See id. at PageID.126.) During his time in law enforcement, he received training "multiple times" in the use of force and in self-defense, and he also received training in "how to immobilize a suspect" and "training, legal training, as it pertains to stops and arrests." (Id. at PageID.127; see id. at PageID.120 (indicating that he received training "about what constitutes an arrest").)

Plaintiff testified that HSI wrongfully terminated his employment in early 2014 "for making [an] EEOC [Equal Employment Opportunity Commission] complaint" against the agency. (Id. at PageID.113, 115.) "Generally speaking," his allegations

were harassment, sexual harassment, according to procedure, sexual orientation. Where—on numerous, numerous occasions, I was subjected to harassment, belittling, mobbing by others, at the office.

And management was well aware of it, and they failed time, and time, and time again, to address the complaints, even saying if you don't like it, then quit, to me.

(Id. at PageID.116.) According to Plaintiff, his EEOC complaint was denied, and various medical issues "precluded him from filing any appeals." (ECF No. 22, PageID.217; see ECF No. 20-2, PageID.116.) Plaintiff filed a civil lawsuit against HSI in federal court "based on EEOC violations" and reached a settlement agreement with the agency "on some of the issues" in 2014 or 2015. (ECF No. 20-2, PageID.116.)

Plaintiff started seeing a psychiatrist and a counselor "[r]oughly about a year and a half before" his employment with HSI ended in 2014. (Id. at PageID.114.) The psychiatrist diagnosed Plaintiff "with post traumatic stress disorder, as relating to working child exploitation, child pornography cases, and also due to the lack of support in the workplace, by coworkers, and the ongoing harassment." (Id.) During his deposition, Plaintiff indicated that he switched providers prior to his departure from HSI and was still receiving treatment for "work related trauma," panic, depression, anxiety, and "stress related issues." (Id. at PageID.114-115.) In addition, Plaintiff voluntarily admitted himself to inpatient treatment at Cittenden Hospital the day after his "gun andbadge [were] taken away" by Special Agent in Charge (SAC) William Hayes. (Id. at PageID.113, 115.) Plaintiff states that "[t]hat was the tipping point at which . . . emotionally, I had a breakdown." (Id. at PageID.115.)

Plaintiff has not worked since he left his position at HSI. (See id. at PageID.112-113.) In 2014, after he was terminated, Plaintiff applied for, and was granted, Social Security disability. (See id. at PageID.128.)

B. The FPS Alert on Plaintiff Issued on January 29, 2014

On January 28, 2014, Inspector Robert J. McManus created an FPS Report. (See ECF No. 20-3, PageID.132-133.) The report's narrative section states:

At approximately 1200 hours this date, I received notification from ADRD Kupser that HSI Deputy SAC William Hayes was reporting a possible threat. ADRD Kupser provided a photo and personal information pertaining to a suspect (Dominique) and I distributed the information to our Inspectors and to the G4S PSO supervision and staff with the instructions that the suspect was not to be allowed access into the building without under going [sic] the complete security screening process. ADRD Kupser stated at that time that I needed to contact Mr. Hayes at his office to obtain additional information.

* * *

I interviewed Mr. Hayes at approximately 1600 hours at which time I arranged for him to provide me with a photo and biographical information on the suspect. The meeting also revealed that his agency had recovered the suspect's law enforcement credentials and his weapon back in July of 2013 but that the suspect was still in possession of his HSPD-12 PIV card.² Mr. Hayes further stated that the suspect was pending additional personnel action(s).

My investigation also revealed that the suspect was recently observed in a local gun shop apparently shopping for firearms. While looking at the firearms, the suspect also allegedly made statements that were possibly threatening to HSI. The suspect has also allegedly made reference to the HSI shooting in Los Angeles, CA[,] which involved an HSI subordinate and supervisor.

I created an FPS Alert pertaining to the suspect which is being forwarded for review and approval.

(Id. at PageID.133.)

During his conversation with Hayes, McManus found Hayes credible. (See ECF No. 20-13, PageID.205.) Hayes provided information to McManus that indicated that "it was possible [Plaintiff] could be armed with a firearm," "it was possible that [Plaintiff] had expressed hostility toward HSI," and Hayes "was afraid [Plaintiff] could pose a threat" to the McNamara Building. (Id.) McManus indicates thatpreventing workplace violence and preventing a possible workplace shooting are FPS's "top priorities." (Id. at PageID.206.) A possible workplace shooting in a government building is "of extreme concern" because "shootings are occurring everywhere, just constantly, and workplace violence is very prevalent." (Id. at PageID.205-206.)

Regarding the information in the report, McManus testified that

[i]t certainly didn't sound like [a favorable employment action had been taken with respect to Plaintiff]. They had taken away his duty weapon and his law enforcement credentials . . . .

Employees at the McNamara Building come through. They show their identification. They go through a turnstile, which is activated by their I.D., and they go in without screening.

They wanted that not to happen with him. They had concerns for their safety with [Plaintiff].

(Id. at PageID.198.) McManus adds that the information he received and "the fact that [HSI] had taken away his weapon and his law enforcement credentials, was indicative of a person they were concerned with possibly being violent." (Id.) McManus was asked during his deposition, "But you had no information of a specific plan?" To which he responded, "That's correct." (Id.) And when asked if there was "a concern about [Plaintiff's] psychological state," McManus responded: "Idon't know. I have no idea." (Id.) HSI did not communicate anything to McManus at that time about Plaintiff's mental state. (See id. at PageID.205.)

An FPS Alert created by McManus was issued the next day, on January 29, 2014. (See ECF No. 20-4, PageID.134; see ECF No. 20-13, PageID.197-198.) This one-page alert indicates in bolded red font that it "[e]xpires 01-29-2015." (ECF No. 20-4, PageID.134.) Beneath that, the alert lists Plaintiff's biographical information and displays his head shot. (See id.) The bottom half of the alert contains the following language:

Geographic and/or Facility Limitation

The originating agency is the Federal Protective Service with dissemination to FPS Region 5 LE and Protective Security Officers (PSO) located at 477 Michigan Ave. Detroit, MI and Homeland Security Investigations (HIS) [sic] offices in the Detroit area.

Details

On 01/28/2014, DOMINIQUE allegedly made inappropriate statements associated with violence and bodily harm with a firearm directed towards HSI employees in the Detroit, MI field office. DOMINIQUE is in possession of his HSPD-12 PIV card but is not in possession of his LE Credentials or service weapon.

If DOMINIQUE appears on government property, Protective Security Officers are to exercise EXTREME CAUTION as DOMINIQUE may be armed and to contact the Battle Creek Mega Center³[sic] immediately. DOMINIQUE should not be detained based solely on this Alert. DOMINIQUE must be processed as a visitor/non-government employee and will NOT be allowed unescorted access to any government facility.⁴

Contact Information

Federal Protective Service Battle Creek Mega Center [sic

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