Williams v. Sabo

IRMA WILLIAMS, Plaintiff,

v. DAVID SABO, CYNTHIA BREYFOGLE, MARYANN CURL,and CAROLE RIVERS, Defendants.

CIVIL CASE NO. 1:11cv219

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

Signed: April 25, 2012

ORDER

THIS MATTER is before the Court on the Motion to Substitute the United States for the Individual Defendants [Doc. 2] and the Motion to Dismiss, both filed by the United States [Doc. 3].

Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation of this Court, United States Magistrate Judge Dennis L. Howell was designated to consider these motions and to submit recommendations for their disposition.

On March 5, 2012, the Magistrate Judge filed a Memorandum and Recommendation in which he recommended granting both motions. [Doc. 8].The Plaintiff timely filed Objections to that recommendation on March 22, 2012. [Doc. 9].

PROCEDURAL HISTORY & FACTUAL BACKGROUND

On August 29, 2011, the United States filed a Notice of Removal of this action from the Superior Court for Buncombe County. [Doc. 1]. In the Notice of Removal, jurisdiction is predicated on 28 U.S.C. §2679(d)(2) which provides that when the United States Attorney General certifies that a defendant in a civil action is an employee of the United States and was acting within the scope of employment at the time of the incident alleged in the complaint, any such civil action brought in a state court shall be removed to federal court. [Id.]. Attached to the Notice of Removal is such a certificate. [Doc. 1-3]. Because of that certification, the action "shall be deemed to be an action . . . brought against the United States . . . and the United States shall be substituted as the party defendant," 28 U.S.C. §2679(d)(2), and thus jurisdiction also lies under 28 U.S.C. §1442(a)(1) which governs actions against the United States.

In the Complaint, the Plaintiff alleges that on September 29, 2008 she was appointed, subject to a two-year probationary period, as a staff anesthesiologist at the Charles George V. A. Medical Center (the VA) in Asheville, North Carolina. [Doc. 1-1 at 1]. Near the conclusion of thatprobationary period, the Plaintiff was reappointed for a term to end on August 11, 2012. [Id.]. The reappointment was signed by Defendants MaryAnn Curl (Curl), Chief of Medical Staff, and Cynthia Breyfogle (Breyfogle), Medical Director. [Id. at 1-2]. Based on this reappointment, the Plaintiff was to become a non-probationary employee as of September 29, 2010. [Id. at 2].

It is alleged that beginning on August 16, 2010, Curl and Breyfogle along with Defendant David Sabo (Sabo), Chief of Anesthesiology, "began a series of malicious actions wrongfully interfering with the Plaintiff's prospective contract with the V. A. Medical Center" which resulted in the termination of her contract on September 29, 2010, the same date she would have become a non-probationary employee. [Id. at 2]. According to the Complaint, the Defendants conducted a Professional Standards Board (PSB) meeting on August 16, 2010 without notice to the Plaintiff; thus, preventing her from having an opportunity to attend. [Id.]. During that meeting, complaints about the Plaintiff which had been made to the PSB by VA employees were presented. [Id.]. As of the time of the meeting, the Plaintiff had not been given copies of those complaints. [Id.]. At the meeting it was decided that an Order of proctoring of the Plaintiff should be entered. [Id. at 3]. This Order was contrary to VA policy. [Id.]. On August 24, 2010, the Plaintiff requested that any proctoring be conducted by a physician other than Sabo because helacked the necessary qualifications to assess her performance. [Id.]. Despite this request, the Plaintiff received notification from Sabo on August 25, 2010 that he would serve as the proctoring physician. [Id.]. During a procedure on August 26, 2010, Sabo was present in the operating room with the Plaintiff. [Id.]. After that procedure, Sabo made a report to Defendant Carole Rivers (Rivers), Acting Chief of Medical Staff, although the content of that report is not alleged. [Id.]. Rivers, in consultation with Curl, immediately thereafter suspended the Plaintiff's hospital privileges at the VA. [Id.]. Breyfogle wrote to the Plaintiff on August 26, 2010 advising her that she had been summarily suspended because her clinical practice and professional conduct did not meet the accepted standards of practice. [Id. at 4]. On August 30, 2010, Curl appointed a Summary Review Board (SRB) which contained some of the same members as those on the PSB. [Id.]. The SRB met on September 10, 2010 to review the complaints. Although the Plaintiff was present, she was not permitted to examine the witnesses. [Id.]. On that same day, the Board entered an Action, finding that the charges of clinical incompetence against the Plaintiff were not substantiated but finding that charges of insubordination were substantiated based on her refusal to meet with her supervisor, Sabo, and her refusal to undergo proctoring. [Id.]. The issuance of this Action resulted in a decision to terminate the Plaintiff. [Id.]. On September 24, 2010,prior to providing the Plaintiff with notice of her right to appeal, Curl sent a report of Revocation of Clinical Privileges to the National Practitioner's Data Base. [Id. at 5]. The basis for the revocation was reported to be disruptive conduct. [Id.]. Three days after this report had been provided to the national database, Breyfogle provided the Plaintiff with notice of her right to appeal the Action. [Id.]. On November 15, 2010, the Plaintiff appeared before the Appeals Board which concluded that the charge of professional misconduct was unsubstantiated and that the Plaintiff had acted properly. [Id.]. Nonetheless, Breyfogle refused to reinstate the Plaintiff. [Id. at 6].

In the Complaint, the Plaintiff has alleged claims for wrongful interference with prospective contract and unfair and deceptive trade practices. [Id. at 6-7].

As noted above, the United States Attorney for the Western District of North Carolina certified that at all times alleged in the Complaint, each of the individual defendants was acting within the course and scope of his or her employment with the United States Veterans Administration.¹ [Doc. 1-3]. The United States then moved on August 29, 2011 to be substituted as the correct party defendant. [Doc. 2]. On the same day, it moved to dismiss the action.[Doc. 3].

STANDARD OF REVIEW

A district court reviews specific objections to a Memorandum and Recommendation under a de novo standard. 28 U.S.C. §636(b). "Parties filing objections must specifically identify those findings objected to." Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir.1987), overruled on other grounds Douglass v. United Ervs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996). If a party makes only general objections, de novo review is not required. Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997)(boilerplate objections will not avoid the consequences of failing to object altogether). "Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only those portions of the report or specified proposed findings or recommendations to which objection is made." United States v. Midgette, 478 F.3d 616, 621 (4th Cir.), cert. denied 551 U.S. 1157, 127 S.Ct. 3032, 168 L.Ed.2d 749 (2007) (emphasis in original).

DISCUSSION

It is undisputed that each of the individual defendants was employed at the relevant time by the Veterans Administration and thus was a federal employee. When a federal employee is sued, 26 U.S.C. §2679, commonly known as the Westfall Act, provides that the Attorney General has the authority to certify that such federal employee, at the time of the incident out of which the claim arises, was acting within the scope of his or her employment. When the Attorney General so certifies the action "shall be deemed to be an action ... brought against the United States ... and the United States shall be substituted as the party defendant." 28 U.S.C. §2679(d)(2) (emphasis provided). Thereafter, the individual federal employee named as a defendant is to be dismissed and the action may proceed, if at all, only as a suit against the United States. Gutierrez de Martinez v. Drug Enforcement Administration, 111 F.3d 1148, 1152 (4th Cir. 1997). The Attorney General has filed such a certification in this case. [Doc. 1-3].

The Westfall Act was initially interpreted such that the Attorney General's certificate was conclusive and unreviewable. Johnson v. Carter, 983 F.3d 1316 (4th Cir. 1993). This was overturned by the Supreme Court in Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 2237, 132 L.Ed. 2d 375 (1995). On remand in that case, the Fourth Circuit formulateda procedure to be followed when a Westfall Certificate is filed. This procedure accounts for both the language of the statute and the constitutional due process considerations articulated by the Supreme Court.

The Attorney General's certification is conclusive unless challenged. When the certification is challenged, it serves as prima facie evidence and shifts the burden to the plaintiff to prove, by the preponderance of the evidence, that the defendant federal employee was acting outside the scope of his employment.

Gutierrez de Martinez, 111 F.3d at 1153 (internal citations omitted). As the Court emphasized in a footnote, "the scope-of-employment certification places the burden of proof on the plaintiff, thereby requiring the plaintiff to come forward with evidence to prove that the defendant federal employee was acting outside the scope of his employment." Id. at 1154 n.5.

It is for the district court to assess the sufficiency of the evidence produced by

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