Mackey v. Milam, 97-3859
| Decision Date | 27 October 1998 |
| Docket Number | No. 97-3859,97-3859 |
| Citation | 154 F.3d 648 |
| Parties | 78 Fair Empl.Prac.Cas. (BNA) 244, 74 Empl. Prac. Dec. P 45,509 Dorothy MACKEY, Plaintiff-Appellee, v. David W. MILAM, Travis Elmore, and United States of America, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joanne Jocha Ervin (argued and briefed), Dayton, OH, for Appellee.
Before: KRUPANSKY, SILER, and COLE, Circuit Judges.
SILER, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. COLE, J. (pp. 652-655), delivered a separate dissenting opinion.
Plaintiff, Dorothy Mackey, initially filed this action in Ohio state court alleging that defendants, David W. Milam and Travis Elmore, her superior officers in the United States Air Force, sexually harassed her. The Department of Justice authorized representation of Milam and Elmore, and the case was removed to federal court with the United States substituted as defendant. The district court, however, determined that under applicable Ohio law, Milam and Elmore were not acting within the scope of their employment when they allegedly sexually harassed Mackey. It therefore rejected substitution of the United States as defendant and remanded the case to the Ohio state court. On the United States's motion, the district court certified its scope of employment decision for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons that follow, we find that Milam and Elmore were acting within the scope of their employment and therefore REVERSE the district court's order.
Mackey was a Captain in the Air Force. Milam and Elmore were her two immediate superior officers during the times in question. Mackey alleges that on several occasions, Milam and Elmore made inappropriate sexual advances toward her.
In her complaint, Mackey states that at their first meeting, Milam locked the door to his office while she was alone with him. He often "ogled" her and made comments when she wore her skirted uniform. He also stood very close to her and inquired about her perfume and make-up. Milam also engaged in "unwanted touching" and made sexual comments in her presence.
Mackey made even more serious allegations against Elmore in her complaint. She alleged that he often stared at her breasts and made comments about her slender waist and her appearance in the skirted uniform. During meetings, he leaned back in his chair so that he could see under the table when she wore her skirted uniform. During one meeting, after Mackey's neck popped, Elmore began massaging her neck. On another occasion, he began touching her ankle and legs after she injured her knee. At another time, he placed his hands around her waist in order to "measure" it. During one meeting, Mackey commented that she was not feeling well. At that point, Elmore began replicating a pelvic exam by moving his hands down Mackey's stomach. Finally, Elmore invited Mackey to a local bar late one evening for the stated purpose of working on her resume. She met him at the bar, but when she started to leave, he initially stopped her and prevented her from entering her car.
Mackey left the Air Force in 1994. She alleges that both Milam and Elmore, who were still on active military duty, subsequently gave unfavorable assessments of her work to prospective employers.
In 1995, Mackey filed a complaint in Ohio state court against Milam and Elmore in their individual capacities, alleging various violations of Ohio common law and of Ohio's civil rights statute. The defendants moved for summary judgment in state court on the basis of intramilitary immunity, but the state court denied that motion.
In the spring of 1996, the Department of Justice authorized representation of Milam and Elmore. The U.S. Attorney filed a certification that the defendants were acting within the scope of their employment under the Westfall Act, 28 U.S.C. § 2679(d)(2). The case was removed to federal court with the United States substituted as defendant. The case therefore became one against the United States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679(d)(1). The United States moved to dismiss on the ground that FTCA claims for injuries that arise incident to military service are barred by the Feres doctrine. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
The district court denied the United States's motion to dismiss and rejected the substitution of the United States as defendant. On the scope of employment issue, the court determined that under Ohio law, Milam and Elmore were not facilitating or promoting the business of the United States and were therefore not acting within the scope of their employment. Therefore, Milam and Elmore were not entitled to have the United States substituted as defendant. The court noted that the case had been litigated for some time in state court and remanded the matter with Milam and Elmore resubstituted as defendants.
In response, the United States filed a Rule 59(e) motion to alter or amend the judgment. The court denied that motion in part and granted it in part in an order dated May 23, 1997. The court refused to revise its order concerning the scope of employment issue and rejected the defendants' alternative argument that they were entitled to intramilitary immunity. However, the court did agree that where facts are disputed, the court must hold an evidentiary hearing to determine whether the plaintiff has produced sufficient threshold evidence that the events in question occurred before ruling on the immunity issue. Therefore, the court vacated its earlier order and ordered an evidentiary hearing, as requested by the United States, for the purpose of determining whether there was evidence that the acts alleged by Mackey in her complaint occurred.
The United States appealed and urged this court to take jurisdiction under the collateral order doctrine. It also filed a motion with the district court to certify the scope of employment decision for interlocutory appeal under 28 U.S.C. § 1292(b). The district court granted that motion and framed the question for interlocutory appeal as follows: "Whether the defendant Air Force officers were acting within the scope of their employment under Ohio law when they allegedly engaged in sexual harassment of the Plaintiff, an Air Force officer who worked for them."
Under 28 U.S.C. § 1292(b), this court may, "in its discretion, permit an appeal to be taken from" an interlocutory order where the district court has certified that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Because we agree with the district court that the scope of employment issue is a controlling question of law and that resolution of the issue would advance the litigation, we take jurisdiction of this appeal under 28 U.S.C. § 1292(b). 1
A scope certification by the U.S. Attorney pursuant to 28 U.S.C. § 2679(d)(2) "does not conclusively establish as correct the substitution of the United States as defendant in place of the employee," Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), but "provides prima facie evidence that the employee was acting within the scope of employment." RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1143 (6th Cir.1996) (citation omitted). Under the Westfall Act, "[w]hether an employee was acting within the scope of his employment is a question of law ... made in accordance with the law of the state where the conduct occurred." Id. This court therefore reviews the district court's determination de novo. Coleman v. United States, 91 F.3d 820, 823 (6th Cir.1996).
The district court relied primarily upon the Ohio Supreme Court's decision in Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991), a case in which a church pastor was accused of engaging in nonconsensual sexual conduct with a member of his congregation. The Ohio court held that the church could not be held liable under a respondeat superior theory of liability as the pastor was not acting within the scope of his employment because his behavior was not "calculated to facilitate or promote the business for which the servant was employed." Id. at 587 (citation omitted). The district court in this case therefore relied on Byrd to hold that Milam and Elmore were acting outside the scope of their employment because sexual harassment did not facilitate the business of the Air Force.
However, the Ohio Supreme Court in a subsequent case made clear that the rationale of Byrd did not apply to an employee's sexual harassment of another employee over whom he or she had supervisory power. In Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 575 N.E.2d 428 (1991), the plaintiff alleged that her direct supervisor had sexually harassed her during the course of her employment. The court specifically rejected Porter Paint's reliance on Byrd and its argument that it could not be held liable because it did not hire the employee to harass female employees. Id. at 432.
In determining whether to impose liability based on respondeat superior on an employer for the sexually harassing acts of one of its employees, federal courts have employed traditional agency principles. Specifically, they have held that where an employee is able to sexually harass another employee because of the authority or apparent authority vested in him by the employer, it may be said that the harasser's actions took place within the scope of his employment.
Id. (citations omitted). Where the harassment...
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