Whedbee v. U.S.

352 F.Supp.2d 618

Maralyn F. WHEDBEE, Plaintiff, v. UNITED STATES of America, Defendant.

No. 1:02 CV 01028.

United States District Court, M.D. North Carolina.

January 7, 2005.

COPYRIGHT MATERIAL OMITTED

Rosbon D. B. Whedbee, Law Offices of Rosbon D. B. Whedbee, Winston-Salem, NC, for Plaintiff.

Gill P. Beck, Joan Brodish Binkley, Office of U. S. Attorney, for Defendant.

MEMORANDUM OPINION

BEATY, District Judge.

I. INTRODUCTION

Plaintiff Maralyn F. Whedbee ("Whedbee") is before this Court with three state law claims relating to her treatment by her supervisor and co-workers at the Federal Aviation Administration, United States Department of Transportation ("FAA"). While Whedbee initially sued her supervisor and co-workers, Rodney L. Carlson ("Carlson"), Jonia A. Widener ("Widener"), and Michael O. Hanson ("Hanson"), respectively, the United States of America ("United States") was substituted as Defendant in place of the three individuals. This Court ordered the substitution [Document # 7] of the United States on January 9, 2003, after the United States Attorney for the Middle District of North Carolina certified that the defendant employees were acting within the scope of their employment at the time of the incidents out of which the claims arose, as per the provisions of 28 U.S.C. § 2679(d)(1).¹ Section 2679(d)(2) further provides that any such action pending in State court shall be removed to a United States district court after the substitution. 28 U.S.C. § 2679(d)(2). The case, therefore, was also properly removed from State court on November 26, 2002, when notice of the impending substitution was filed.

Plaintiff now brings a Motion for Reconsideration of Order and for Relief from Orders Pursuant to Rule 60(b) [Document # 17], filed on June 2, 2003, nearly five months after this Court's Order of substitution, asking this Court to reconsider the substitution of the United States as Defendant for the individual defendants, Ms. Widener, Mr. Carlson, and Mr. Hanson. As part of this same motion, Plaintiff also requests a remand of this matter back to state court. The United States Response to Plaintiff's Motion for Reconsideration was filed on June 20, 2003 [Document # 20].

In addition, Defendant United States brings its own Amended Motion to Dismiss [Document # 12], filed on March 11, 2003, for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1); for lack of proper service, pursuant to Rule 12(b)(5); and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). Alternatively, Defendant United States has moved for summary judgment, pursuant to Rule 56. Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment, as amended, on June 16, 2003 [Document # 19]. Defendant Replied on June 20, 2003 [Document # 21]. Thus, these motions are ripe for review.

II. FACTUAL BACKGROUND

As is proper when considering a Motion to Dismiss, this Court will consider the facts in a light most favorable to the non-moving party, which in this case is the Plaintiff. This action arises out of the alleged poor treatment Plaintiff received at the hands of her co-workers and supervisor. Plaintiff worked as Administrative Secretary to the Manager of the North Carolina Flight Standards District Office ("FSDO"), FAA Southern Region, from July 14, 1991, until her early retirement in September 2001. (Pl.'s Compl., at 1.) Plaintiff's position was paid at the GS-6, step 5 pay rate. (Id. at 4.) Plaintiff alleges that the hostile work environment she experienced during that decade of employment had roots in her hiring, because her co-worker, Ms. Widener, an Administrative Officer of the FSDO, was biased against Plaintiff because she had no input in Plaintiff's selection to her position. (Id.) Plaintiff alleges that Ms. Widener had worked for the FAA for about seventeen years at the time of Plaintiff's hiring, and so considered the office to be her "fiefdom." (Id.) Thus, because Ms. Widener disliked Plaintiff, particularly her "friendly, garrulous and out-going personality," Ms. Widener would derogate the character of Plaintiff to her supervisor, Manager Carlson. (Id. at 5.) Plaintiff alleges that beginning in 1992, Ms. Widener would report false accusations about Plaintiff, and get other clerical employees to register complaints about Plaintiff as well, and to generally "trot tales" to Manager Carlson about Plaintiff's personal actions and job performance. (Id. at 6.)

Plaintiff contends that this conduct by Ms. Widener had an effect on Plaintiff's relationship with Manager Carlson. As a result, Mr. Carlson would frequently take negative personnel actions against Plaintiff, as well as other subordinates who had incurred his disfavor. (Id. at 7.) Plaintiff alleges that Mr. Carlson would frequently "walk up to Plaintiff and ask for an explanation of some matter... and would then walk away without comment prior to the Plaintiff completing her explanation or response, while she was still talking." (Id.) He also would tell Plaintiff, if she became upset and did not like something, that she could leave, since her husband was a lawyer. (Id.) On other occasions he would become agitated at Plaintiff and throw objects in her general direction, without hitting her. (Id. at 8.) Plaintiff also complains that Manager Carlson would take the side of other employees against Plaintiff and would blame Plaintiff for something that he did not like without doing any independent investigation. (Id.) Furthermore, Plaintiff alleges that Manager Carlson would chastise her in front of other employees, and would not apologize to Plaintiff even when other employees corrected his mis-impression of Plaintiff. (Id.) Plaintiff also alleges that when a fellow clerical employee began a series of unwarranted "personal verbal attacks" against Plaintiff, Manager Carlson "both tacitly and openly supported the wrongful actions." (Id. at 9.)

Plaintiff alleges that a conspiracy developed between Manager Carlson and Ms. Widener to create a hostile work environment against Plaintiff. Plaintiff believes that this was evidenced by Ms. Widener, Mr. Carlson, and Unit Manager Hanson (later Acting Manager) often being observed talking intently in whispers, holding meetings behind closed doors, "sometimes locked." (Id. at 5.) Plaintiff alleges that these meetings continued even after Manager Carlson retired in February 2001, because Acting Manager Hanson, Mr. Carlson, and Ms. Widener would periodically go out to lunch together. (Id. at 10.) Plaintiff further asserts that after these lunches, Mr. Hanson would often take some negative action against Plaintiff and other FSDO employees. (Id.)

Plaintiff alleges that Acting Manager Hanson began a series of antagonistic verbal assaults against Plaintiff in order to create such a hostile work environment that would force Plaintiff to resign her position. (Id.) Plaintiff alleges that Mr. Hanson would use "inappropriate and hurtful" language where the Plaintiff could overhear him. (Id. at 11.) Plaintiff complains that Mr. Hanson would back other clerical employees who complained about Plaintiff's allegedly "hostile" attitude. (Id.) Mr. Hanson also failed to take corrective action against the same clerical employee whom Plaintiff had earlier reported as making personal attacks against her. (Id.) Mr. Hanson's response to Plaintiff's complaints was to advise Plaintiff that she should apply for a medical retirement because of illness suffered by Plaintiff.² (Id.) Plaintiff further contends that the work environment was hostile to the extent that Mr. Hanson admonished Plaintiff without knowledge of the facts involved in specific instances. (Id.) Furthermore, he often berated Plaintiff in a loud, antagonistic, and hostile manner while standing very close to Plaintiff. (Id.) Finally, Plaintiff contends that Mr. Hanson, without her knowledge or consent, altered a job performance evaluation of Plaintiff after she filed for retirement.³ (Id. at 12.)

From these assertions of fact, Plaintiff brings three claims: one count of intentional infliction of emotional distress, one count of tortious interference with contract, and one count of civil conspiracy. Plaintiff contends that all of the claims were properly filed in state court. Plaintiff did not file an administrative action for these claims with the FAA prior to bringing this lawsuit in state court, which was subsequently removed to this Court. (Def.'s Am. Mem. Supp. Mot. Dismiss or in the Alternative for Summ. J., Ex. D. (Decl. of James S. Dillman)(stating that no administrative action was filed)). For this reason, among others, Defendant contends that Plaintiff's claims should be dismissed because the Court does not have subject matter jurisdiction. The Court will consider the various motions of the parties in turn.

III. RULE 60(b) MOTION

First, as previously noted, Plaintiff brings a motion under Rule 60(b) of the Federal Rules of Civil Procedure, to ask this Court to reconsider the substitution of the United States as Defendant in this action.

Rule 60(b) of the Federal Rules of Civil Procedure provides in pertinent part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... (6) any other reason justifying relief from the operation of the judgment.

Plaintiff requests that this Court reconsider its Order substituting the United States for the three previous Defendants because "the Court erred in...