Allstate Ins. Co. v. Quick, C-3-98-338.

• Decision Date: 03 December 2002
• Docket Number: No. C-3-98-338.,C-3-98-338.
• Citation: 254 F.Supp.2d 706
• Parties: ALLSTATE INSURANCE CO., Plaintiff, Herbert RICE, v. Denise QUICK, and Robert McKee, Defendants. Robert McKee, Plaintiff, Herbert Rice, v. United States of America, for Denise Quick, Defendant.
• Court: U.S. District Court — Southern District of Ohio

Page 706

254 F.Supp.2d 706

ALLSTATE INSURANCE CO., Plaintiff, Herbert RICE, v. Denise QUICK, and Robert McKee, Defendants.

Robert McKee, Plaintiff, Herbert Rice, v. United States of America, for Denise Quick, Defendant.

No. C-3-98-338.

United States District Court, S.D. Ohio, Western Division.

December 3, 2002.

Paul Roderer, Dayton, OH, for Plaintiff.

Andrew Storar, Patrick Quinn, James Greene, III, Frank Payson, Dayton, OH, for Defendants.

ENTRY SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING SCOPE OF EMPLOYMENT; OPINION; PLAINTIFF'S CAUSE OF ACTION DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION, ON THE COURT'S OWN MOTION, TO THE EXTENT IT IS DEEMED ONE AGAINST THE UNITED STATES; DENISE QUICK RESUBSTITUTED AS DEFENDANT TO THE EXTENT UNITED STATES IMPROPERLY SUBSTITUTED ITSELF AS DEFENDANT, AND THIS PORTION OF THE CASE REMANDED TO THE GREENE COUNTY COMMON PLEAS COURT, ON THE COURT'S OWN MOTION; TERMINATION ENTRY

RICE, Chief Judge.

This consolidated action originated with Plaintiff Robert McKee's two-count Complaint (attached to Doc. # 1) for defamation and intentional infliction of emotional distress against Denise Quick, a civilian employee at Wright Patterson Air Force Base in Dayton, Ohio ("Wright Patterson"). McKee originally filed his Complaint in the Greene County Common Pleas Court. Pursuant to 28 U.S.C. § 2679(d)(2), the United States of America substituted itself for Quick as the Defendant and removed the case to this Court. (See Doc. # 1.) Presently at issue is whether the United States properly substituted itself as the Defendant in this lawsuit and properly removed the case to this Court.

McKee, who formerly worked as Quick's supervisor at Wright Patterson, alleged in his Complaint that Quick defamed him on several occasions by publishing communications to his supervisors and co-workers at Wright Patterson that he had sexually harassed her and discriminated against her on the basis of her race. (Compl. ¶ 6.) He claimed that she defamed him in a second manner by publishing communications to his supervisors, co-workers, and Wright Patterson security police that he had physically assaulted her. (Id. ¶ 7.) Pointing to the same alleged conduct, McKee pled a second count for intentional infliction of emotional distress. (Id. ¶¶ 12-15.) He also sought punitive damages. (Id. ¶¶ 16-17.) For her part, Quick requested that her insurer, Allstate Insurance Co. ("Allstate"), provide her with legal representation, in response to which Allstate filed a separate action in the Greene County Common Pleas Court for a declaratory judgment on its obligation to her. The state court thereafter consolidated the two actions. Subsequently, per the certification of the United States Attorney for the Southern District of Ohio that Quick had acted within the scope of her employment at all times relevant to McKee's Complaint, the United States filed a Notice of Substitution and Removal (Doc. # 1), substituting itself as the proper Defendant in McKee's action against Quick and removing the consolidated action to this Court. The portion of the case concerning Allstate's request for a declaratory judgment is currently under a stay of this Court.

There is no dispute that if the United States properly substituted itself, the action must be dismissed.¹ By the same token, there is also no dispute that if the United States did not properly substitute itself, Quick must be re-substituted as the proper Defendant. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). Whether the case should be remanded in that event is an issue upon which the Court will elaborate in greater detail below.

Whether the United States properly substituted itself turns on whether Quick was acting within the scope of her employment at Wright-Patterson, as the United States Attorney has certified, when she took the alleged actions which spurred McKee's tort claim in state court. See 28 U.S.C. § 2679(d)(2). Earlier in this litigation, the United States, consistent with its certification, averred that she was and moved to dismiss. (See Doc. # 2.) In response, McKee averred that she was not and moved to remand the case to the Greene County Common Pleas Court. (See Doc. # 8.) After considering the arguments proffered by the two parties in their respective Motions and related memoranda, the Court determined that, absent an evidentiary hearing on the matter, it could not make a ruling on the scope of employment issue, which, in this context, presents a question of law. (See Doc. # 23 at 6, 17-21); Coleman v. United States, 91 F.3d 820, 823 (6th Cir.1996). It therefore overruled both motions, stating that it would revisit the competing issues of dismissal and remand after it had conducted such a hearing. (See Doc. # 23 at 21.)

The Court conducted its hearing on November 12, 1999, as continued and completed on June 9, 2000. (See Doc. # s 39, 42, 45 & 47.) Following said hearing, the parties filed with the Court their respective post-hearing memoranda of law. (See Doc. # s 49, 50 & 51.) Herein, the Court shall set forth its findings of fact, opinion, and conclusions of law with respect to the scope of employment issue. For the reasons which follow, subject to the limitations discussed, the Court finds that the United States improperly substituted itself as the Defendant in this case.

1. Findings of Fact²

The Court finds that McKee proved the following facts by a preponderance of the testimony and evidence adduced at the evidentiary hearing:

1. During the relevant time period, McKee was Quick's supervisor at the National Air Intelligence Center ("NAIC"), at Wright Patterson. (Doc. 42 at 6-7.)

2. Wright Patterson maintains a workplace discrimination grievance system in conformity with Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Doc. # 47 at 27.)

3. Wright Patterson also employs security police who serve, at least in part, for the protection of employees who feel physically threatened by other individuals. (Id.)

4. In January, 1997, Quick filed a Title VII grievance against McKee, on the basis of race and sex discrimination. (Doc. # 42 at 8-9 & 114-16.)

5. Around the same time, Quick communicated to her mother, Jeanette Goode, that she was having problems with McKee at work due to her sex and race, even though her mother had nothing to do with the Title VII grievance system at the NAIC. (Id. at 18-20.)

6. Quick also stated to Catherine Thomas, a co-worker, that McKee discriminated against her because of her race, even though Thomas had nothing to do with the Title VII grievance system at the NAIC. (Id. at 64, 66.)

7. Other employees at the NAIC were also aware that Quick considered McKee to have discriminated against her on the basis of her race and sex. (Id. at 91, 93-94.)

8. On April 1, 1997, Quick filed an assault complaint against McKee with the Wright Patterson security police, relating to a confrontation between the two of them which had taken place four days earlier, on March 27. Their confrontation consisted of McKee yelling at Quick about certain workplace personnel issues. At some point, he caused a clipboard to fall off a file cabinet and come into contact with Quick, the event which triggered her assault complaint. At the time, upset and startled, Quick proceeded to engage the assistance of the security police and another supervisor. Several days later she submitted a written statement of her own making, and the next day, April 1, completed an official complaint at the insistence of Staff Sergeant Edward Opsahl, a security policeman at the NAIC. (Id. at 20-21, 48, 61-63, 82, 84, 86.)

9. By the time she filed the official complaint for assault, she had at least some idea that the clipboard incident might have occurred accidentally. (Id. at 63.)

10. When she filed her assault complaint, she also stated to the Wright Patterson security police that McKee had a problem with the fact that she, a black woman, held the employment position that she did, even though the security police had nothing to do with the Title VII grievance system. (Id. at 26-28, 87.)

11. Her allegation that McKee discriminated against her as a black woman bore no relation to her complaint of assault. (Id. at 87.)

12. Talk of Quick's assault complaint against McKee was widespread throughout the building in which they worked. (Id. at 66.)

13. Quick's honesty and commitment to telling the truth are in doubt. (Id. at 64, 73-74, 92, 98,101-02 & 109.)

14. The filing of false security complaints at Wright Patterson is a ground for disciplinary action. (Doc. # 47 at 32.)

II. Opinion

McKee's Complaint for defamation and intentional infliction of emotional distress stemmed from Quick's claims to others, outside the Wright Patterson Title VII grievance process, that he had discriminated against her, and from the assault complaint which she filed with the Wright Patterson security police and allegedly discussed with others. (See Doc. # 42 at 115.) The Court will first consider the proper standard for review. It will then consider whether Quick acted outside the scope of her employment when she filed her assault complaint with the Wright Patterson security police. Following that, the Court will consider whether Quick made any allegedly defamatory comments to coworkers or others not involved in the formal grievance systems established at Wright Patterson, such that it might be said she acted outside the scope of her employment when she did so. Finally, the Court will consider whether it is appropriate, under any circumstance, to remand this action to the Greene County Common Pleas Court.

A. Standard for Review

At the heart of this dispute is McKee's allegation that Quick made defamatory statements. Although the Court is not concerned herein with whether any of her statements were, in fact, defamatory, it is concerned with one element of a defamation cause of action: the act of publication.

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