Zuzul v. McDonald

MARCIA ZUZUL, Plaintiff, v. ROBERT A. MCDONALD, Secretaryof Veterans Affairs, et al.,¹ Defendants.

1:14CV251

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

August 6, 2014

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned Magistrate Judge on Plaintiff's Objection to Notice of Substitution and Request for Hearing Regarding United States Attorney's Certification. (Docket Entry 13.) For the reasons below, the Court should deny Plaintiff's instant Objection and should substitute the United States for Defendant William F. Pearson, M.D.²

BACKGROUND

Plaintiff's Amended Complaint alleges assault, battery, and defamation under North Carolina law against Defendant William Pearson, M.D., her co-worker at the Veterans Affairs Medical Center ("VAMC") in Salisbury, North Carolina. (Docket Entry 5 at 1, 22-24.) It also alleges various claims against Plaintiff's employer, the Department of Veterans Affairs, for discrimination, harassment, and retaliation based on gender and race under Title VII and 42 U.S.C. § 1981 (id. at 1, 16-21), which do not directly concern Plaintiff's instant Objection.

According to Plaintiff, at the VAMC, she works as a certified registered nurse anesthetist and Defendant Pearson works as an anesthesiologist. (Docket Entry 14 at 2.) Plaintiff contends that, while she and Defendant Pearson prepared to administer anesthesia to a patient, Defendant Pearson argued with Plaintiff about the patient-care plan and then pushed her away from the patient's bedside. (Id.) Plaintiff further alleges that, following "her efforts to seek redress for his misbehavior, [Defendant] Pearson [] engaged in a campaign to tarnish Plaintiff's professional reputation, to disgrace Plaintiff's professionalism and her abilities as a nurse anesthetist, and to disparage her professional skills to her colleagues and superiors at [the] VAMC."(Id. at 3.) In that regard, Plaintiff asserts that Defendant Pearson reviewed her charts without authorization, falsely accused her of improper charting and of failing to attend a scheduled procedure, and instigated a baseless performance review. (Id.) Finally, according to Plaintiff, Defendant Pearson assaulted Plaintiff a second time at a departmental meeting by yelling and pointing his finger at her regarding her purported failure to come to the VAMC while on call. (Id.)

The United States filed a Notice of Substitution as to Plaintiff's claims against Defendant Pearson based on the United States Attorney's certification (pursuant to the Westfall Act, also known as the Federal Employees Liability Reform and Tort Compensation Act of 1988, codified at 28 U.S.C. § 2679(d)(1) and (2)) that, at all relevant times, Defendant Pearson acted within the scope of his federal employment. (Docket Entry 8 at 1-2.) Based on that determination, the United States concluded that, pursuant to the Federal Tort Claims Act ("FTCA"), as amended by the Westfall Act, "a suit against the United States [serves as] the exclusive remedy for [Plaintiff's] claims for damages arising from common law torts resulting from the actions of [Defendant Pearson] taken within the scope of [his] office or employment." (Id. (citing 28 U.S.C. 2679(b)(1)).)

Plaintiff now objects to the Notice of Substitution and asks the Court to deny the substitution, or in the alternative, toprovide for limited discovery and a hearing concerning whether Defendant Pearson's alleged tortious conduct occurred within the scope of his employment. (Docket Entry 13 at 1-2.) The United States responded (Docket Entry 16) and Plaintiff replied (Docket Entry 18).

DISCUSSION

The Westfall Act provides that, "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action . . . in a United States district court shall be deemed an action against the United States . . . and the United States shall be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).³ However, the United States Supreme Court has ruled that "[this] statute is fairly construed to allow [plaintiffs] to present to the District Court their objections to the Attorney General's scope-of-employment certification." Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 436-37 (1995). In other words, "[t]he Attorney General's certification is conclusive unless challenged." Gutierrez de Martinez v. Drug Enforcement Admin., 111 F.3d 1148, 1153 (4th Cir. 1997).

Judicial review of scope-of-employment certifications addresses concerns about "the Attorney General's incentive to grant certification when the United States [is] immune from suit, thereby shielding the federal employee from liability while not exposing the United States to liability [under the FTCA]." United States v. Al-Hamdi, 356 F.3d 564, 572 (4th Cir. 2004) (citing Gutierrez de Martinez, 515 U.S. at 427-28). The instant case presents such a scenario because the FTCA's waiver of sovereign immunity does not extend to the intentional torts alleged by Plaintiff. See 28 U.S.C. § 2680(h) (excluding assault, battery, libel, and slander from FTCA). Nonetheless, the Fourth Circuit has "[r]ecogniz[ed] the 'desirability of quickly resolving the scope-of-employment issue' because 'immunity under the Westfall Act, like other forms of absolute and qualified immunity, is an immunity from suit rather than a mere defense to liability,' [and the Fourth Circuit has] emphasized that 'the district court should remain cognizant of the considerations weighing against protracted litigation under the Westfall Act.'" Borneman v. United States, 213 F.3d 819, 827 (4th Cir. 2000) (quoting Guitierrez de Martinez, 111 F.3d at 1154-55) (internal citations and some quotation marks omitted).

"When the [scope-of-employment] certification is challenged, it serves as prima facie evidence and shifts the burden to the plaintiff to prove, by a preponderance of the evidence, that the defendant federal employee was acting outside the scope of hisemployment." Gutierrez de Martinez, 111 F.3d at 1152 (emphasis added). "To carry its burden, the plaintiff must submit 'specific evidence or the forecast of specific evidence that contradicts the Attorney General's certification decision, not mere conclusory allegations and speculation.'" Borneman, 213 F.3d at 827 (quoting Gutierrez de Martinez, 111 F.3d at 1155). "To assist in this inquiry, the district court, in its discretion, may allow limited discovery or conduct an evidentiary hearing on the matter of scope of employment. However, such a hearing is unnecessary if the certification, pleadings, affidavits, and any supporting documents fail to reveal an issue of material fact." Lee v. United States, 171 F. Supp. 2d 566, 574 (M.D.N.C. 2001). "At all stages of the process, it is for the district court to weigh the sufficiency of the evidence, to determine whether genuine issues of fact exist, and ultimately to resolve these factual issues . . . to determine whether the certification should stand." Borneman, 213 F.3d at 827.

In considering whether a defendant acted within the scope of federal employment, "the district court must apply the respondeat superior law of the state in which the alleged tortious conduct occurred." Lee, 171 F. Supp. 2d at 574. Plaintiff's Amended Complaint alleges that Defendant's tortious conduct occurred in North Carolina. (Docket Entry 5 at 3-16.) "Although, under North Carolina law, the scope-of-employment issue would generally be onefor the jury to decide, under the Westfall Act and the FTCA, a 'plaintiff seeking relief against a federal employee is not entitled to a jury trial on the scope-of-employment issue, even if the relevant state law would provide a jury trial.'" Lee, 171 F. Supp. 2d at 575 n.6 (quoting Gutierrez de Martinez, 111 F.3d at 1153).

Under North Carolina law, "'[t]o be within the scope of employment, an employee, at the time of the incident, must be acting in furtherance of the principal's business and for the purpose of accomplishing the duties of his employment.'" Matthews v. Food Lion, LLC, 205 N.C. App. 279, 282, 695 S.E.2d 828, 831 (2010) (quoting Troxler v. Charter Mandala Ctr., 89 N.C. App. 268, 271, 365 S.E.2d 665, 668 (1988)). In other words,

If the act of the employee was a means or method of doing that which he was employed to do, though the act be unlawful and unauthorized or even forbidden, the employer is liable for the resulting injury, but he is not liable if the employee departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do.

Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66-67, 153 S.E.2d 804, 808 (1967). Similarly, the Fourth Circuit has characterized the North Carolina standard as involving consideration of "the degree to which the physical confrontation . . . represented an escalation of a work-related dispute and the degree to which is was motivated by personal animosity." Borneman, 213 F.3d at 829.

Although the intentional torts of employees generally do not occur within the scope of employment, Medlin v. Bass, 327 N.C. 587, 594, 398 S.E.2d 460, 464 (1990), North Carolina law clearly recognizes that some intentional torts do occur within the scope of employment, Borneman, 213 F.3d at 829 (citing cases).⁴ For example, the North Carolina Supreme Court held that a jury could find that a collector of insurance premiums who drew a pistol on a policyholder refusing to pay acted within the scope of his employment if "the assault, however misguided and unauthorized, was committed as an incident of the employee's duties in the collection of accounts." Clemmons v. Life Ins. Co. of Ga., 274 N.C. 416, 422-23, 163 S.E.2d 761, 766 (1968). In contrast, the North Carolina Supreme Court held that, as a matter of law, a bus boy's unprovoked attack on a customer did not...