Kirk v. United States

383 F.Supp.3d 1140

Luke KIRK, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 3:18-cv-00223-HZ

United States District Court, D. Oregon, Portland Division.

Signed May 29, 2019

Judy Danielle Snyder, Holly Lloyd, Law Offices of Judy Snyder, 1000 SW Broadway, Suite 2400, Portland, OR 97205, Attorneys for Plaintiff

Billy J. Williams, United States Attorney, Dianne Schweiner, Assistant United States Attorney, District of Oregon, 1000 SW Third Ave, Suite 600, Portland, OR 97204, Attorneys for Defendant

OPINION & ORDER

HERNÁNDEZ, District Judge:

Plaintiff Luke Kirk brings this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), alleging that Defendant United States of America is vicariously liable for the professional negligence of Ami Phillips, a former employee of the Portland Veterans Affairs Medical Center.¹

Before the Court is Defendant's motion for summary judgment. Defendant argues that it is not vicariously liable for Phillips' actions because Phillips' tortious conduct did not occur within the scope of her employment. For the reasons that follow, the Court finds that Phillips was not acting within the scope of her employment and therefore GRANTS Defendant's motion.

BACKGROUND

Plaintiff is a 100% service-connected disabled veteran. Kirk Decl. ¶¶ 2, 3, ECF 20. In November 2015, Plaintiff began receiving mental health treatment at the Portland Veterans Affairs Medical Center (VAMC). Id. at ¶¶ 4, 5. As part of that treatment, the VAMC assigned Ami Phillips, a licensed social worker, to hold weekly therapy sessions with Plaintiff. Morgan Decl. Ex. C at 1, ECF 15. In December 2015, those weekly sessions became twice-weekly sessions. Kirk Decl. ¶ 5.

Eventually, Phillips and Plaintiff began a personal, romantic relationship. Phillips provided Plaintiff with her personal cell phone number, and the two began exchanging text messages. Morgan Decl. Ex. A at 1. In these text messages—sent throughout the work-day and at night—the pair discussed personal matters like falling in love, getting married, and adopting a child. See Morgan Decl. Ex. E, ECF 15-5. They also discussed matters related to Plaintiff's ongoing therapy sessions. Some of these matters were routine, like scheduling appointments and meeting with a new psychiatrist. See id. at 33, 35. Others involved more substantive, therapy-related conversations. For example, in one message, Phillips commented on a previous session, stating "[i]t was nice seeing you today and hear you repeat some of the things we worked on. So our last therapy sessions were not a complete failure." Id. at 90. In another, Phillips appeared to provide Plaintiff with therapeutic advice: "You allow your [self] to be small because that's how your parents treated you[.]" Id. at 76. Plaintiff once wrote that "The only reason you would choose me to be a part of your life is to better understand my illness and behaviors." Id. at 68. And Phillips once threatened to cancel their therapy appointments and terminate Plaintiff from the clinic if Plaintiff did not apologize following a personal fight. See id. at 82–84.

At one point, Plaintiff expressed to Phillips, via text, that he was feeling suicidal. Id. at 113–24. Phillips directed him to report to the VAMC emergency room. Id. at 113. She arranged, in her official capacity, for Plaintiff to be admitted for treatment. Id. at 114–16. She told him if he didn't come to the hospital, she would have to contact the police. Id. at 116. While Plaintiff initially headed to the VAMC, where he was told that Phillips would wait for him and facilitate his entry and treatment, he eventually decided to return home rather than seek admittance. Id. That evening, Phillips appears to have spent several hours at Plaintiff's apartment. Id. at 120–24.

The relationship was not limited to texting. Phillips spent time at Plaintiff's apartment, and the pair went to bars and restaurants. See, e.g. , Kirk Decl. ¶ 9. They also maintained their weekly (or twice-weekly) therapy sessions at the VAMC. At one session, Phillips and Plaintiff kissed. Id. at ¶ 11. At another, Phillips "sat on a counter, and put her legs on" Plaintiff. Id. at ¶ 8. Plaintiff describes one session where Phillips "told [him] to put [his] hands on her hips, and said it would help [him] with [his] personal interactions with others .... [He] believe she just wanted to touch [him] and have [him] touch her." Id. Even when there was no physical contact, the sessions sometimes involved discussions about their romantic lives and their personal relationship. Id. ¶ 7, 8.

In June 2016, the personal relationship between Plaintiff and Phillips deteriorated. Plaintiff told Philips he was going to report the relationship to the VAMC. Id. at ¶ 11. He followed through on June 8, 2016. Morgan Decl. ¶ 2. That same day, Phillips falsely reported to the VAMC that Plaintiff had threatened to kill her. Id. ; Morgan Decl. Ex. A at 3. In response to this report, the mental health clinic closed for the day. Morgan Decl. Ex. A at 3. However, once an investigation revealed that Phillips' allegations were false, Phillips was fired and criminal charges were filed. Morgan Decl. Exs. H, I. Phillips eventually pled guilty to attempted coercion and initiating a false police report. Morgan Decl. Ex. J. Plaintiff filed this complaint on February 1, 2018. ECF 1.²

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "An issue of material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party." Reed v. Lieurance , 863 F.3d 1196, 1204 (9th Cir. 2017) (quoting Cortez v. Skol , 776 F.3d 1046, 1050 (9th Cir. 2015) ).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To meet this initial burden, a moving party without the burden of proof at trial need only point to the absence of evidence supporting the nonmoving party's claim. Id. at 325, 106 S.Ct. 2548.

Once that initial burden is satisfied, the burden then shifts to the nonmoving party to demonstrate that there remains a genuine issue of material fact to be tried. Id. at 323, 106 S.Ct. 2548. A nonmoving party with the burden of proof at trial must move beyond mere allegations and set forth affidavits, declarations, motions, or other evidentiary materials from the record to establish the essential elements of its claim. Id. at 324, 106 S.Ct. 2548.

All reasonable doubts as to the existence of a genuine issue of material fact must be resolved in the nonmoving party's favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[I]f conflicting inferences may be drawn from the facts ... the case must go to the jury." Reed , 863 F.3d at 1204 (quoting LaLonde v. Cty. Of Riverside , 204 F.3d 947, 995-99 (9th Cir. 2000).

DISCUSSION

Defendant raises a single issue in this motion for summary judgment. Defendant argues it is not vicariously liable for Phillips' negligent conduct because Phillips was acting outside the scope of her employment when she engaged in a personal relationship with Plaintiff.

"A party may bring an action against the United States only to the extent that the government waives its sovereign immunity." Valdez v. United States , 56 F.3d 1177, 1179 (9th Cir. 1995). The government has waived its sovereign immunity under the Federal Tort Claims Act (FTCA) for claims "arising out of the negligent conduct of government employees acting within the scope of their employment." Soldano v. United States , 453 F.3d 1140, 1145 (9th Cir. 2016). Whether an employee was acting within the scope of her employment is decided using the law of the state in which the alleged tort occurred. 28 U.S.C. § 1346 (b)(1) ; Pelletier v. Fed. Home Loan Bank of San Francisco , 968 F.2d 865, 876 (9th Cir. 1992).

Here, the alleged tort occurred in the state of Oregon. Under Oregon law, an employee's act falls within the scope of her employment when (1) "the act occur[s] substantially within the time and space limits authorized by the employment;" (2) "the employee [is] motivated, at least partially, by a purpose to serve the employer;" and (3) "the act is of a kind which the employee was hired to perform." Chesterman v. Barmon , 305 Or. 439, 442, 753 P.2d 404 (1988). Each element must be met to hold an employer vicarious liable. Fearing v. Bucher , 328 Or. 367, 373, 977 P.2d 1163 (1999). While the question of whether a particular act falls within the scope of employment is generally left for the trier of fact, "summary judgment is appropriate when only one reasonable conclusion can be drawn from the facts." Brungardt v. Barton , 69 Or.App. 440, 443, 685 P.2d 1021 (1984).

Plaintiff urges the Court to follow Fearing v. Bucher , 328 Or. 367, 373, 977 P.2d 1163 (1999) in its analysis of this issue. In Fearing , the plaintiff brought claims of sexual abuse against a priest and his employer. 328 Or. at 370, 977 P.2d 1163. In determining whether the priest's employer was vicariously liable for the priest's actions, the Oregon Supreme Court applied the Chesterman factors. The court found that the priest's "alleged sexual assaults on plaintiff clearly were outside the scope of his employment" under the traditional test, but held that the "inquiry does not end there." Id. at 374, 977 P.2d 1163. Instead, the court went on to ask whether "acts that were within [the priest's] scope of employment resulted in the acts which led to injury to [the] plaintiff." Id. (emphasis added; internal quotation marks and citation omitted). The court concluded that because a jury could infer from the facts alleged that "performance of ... pastoral duties with respect to plaintiff and his family were a necessary precursor to the sexual abuse...