Anthony v. United States
| Decision Date | 30 September 2022 |
| Docket Number | CV-20-08002-PCT-DJH |
| Parties | Ophelia Anthony, et al., Plaintiffs, v. United States of America, Defendant. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is Defendant United States of America's (“Defendant”) Motion for Summary Judgment (Doc 67). Plaintiffs have filed a Response (Doc. 74), Defendant filed a Reply (Doc. 77), and Plaintiffs were permitted to file a Sur-Reply (Doc. 81). The matter is fully briefed.[1] For the following reasons, the Court grants, in part, and denies, in part, the Defendant's Motion.
On August 26, 2012, non-party Garrison Sloan (“Sloan”) was hired to work as an information technology (“IT”) specialist in the IT department for the Fort Defiance Indian Hospital Board, Inc. (“FDIHB”). (Docs. 67 at 5; 74 at 9). Although he had begun work, his background check was not completed until August 31, 2012. (Doc. 67-3). It was not until January 2015 that FDIHB's Human Resources (“HR”) Department reviewed the results of Sloan's background report. (Doc. 67 at 7). The report revealed that Sloan had been convicted of “[a]ttempted surreptitious videotaping” in 2006. (Doc. 67-3). In 2015, FDIHB staff confronted Sloan about the prior conviction, and ultimately decided not to terminate him. (Docs. 67 at 7-8; 74 at 10).
On March 9, 2016, a video camera was discovered in an FDIHB women's bathroom. (Docs. 67 at 8; 74 at 10). Another recording device was found in an FDIHB unisex bathroom on December 29, 2016. (Docs. 67 at 9; 67-16 at 4; 74 at 10). A subsequent investigation revealed that the camera's images were accessed and viewed by Sloan's computer. (Docs. 67 at 9-10; 74 at 10-11). Criminal charges followed, and Sloan entered into a plea agreement in 2018, in which he pled guilty to voyeurism. (Doc. 74-12).
FDIHB, located on the Navajo Nation, operates under an Indian Self-Determination and Education Assistance Act contract with the United States Department of Health and Human Service. (Docs. 67 at 2; 74 at 9). Plaintiffs in this action are current FDIHB employees and bring this action against Defendant United States under the Federal Tort Claims Act (“FTCA”). (Doc. 39 at ¶ 5).
In their First Amended Complaint (“FAC”) (Doc. 39), Plaintiffs bring four causes of action: Count I for negligence; Count II for negligent hiring, retention, and supervision; Count III for invasion of privacy; and Count IV for intentional infliction of emotional distress. (Id. at ¶¶ 196-220). Defendant moves for summary judgment in its favor on all four counts.
A court will grant summary judgment if the movant shows there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine when a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court does not weigh evidence to discern the truth of the matter; it only determines whether there is a genuine issue for trial. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th Cir. 1994). A fact is material when identified as such by substantive law. Anderson, 477 U.S. at 248. Only facts that might affect the outcome of a suit under the governing law can preclude an entry of summary judgment. Id.
The moving party bears the initial burden of identifying portions of the record, including pleadings, depositions, answers to interrogatories, admissions, and affidavits, that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the burden shifts to the non-moving party, which must sufficiently establish the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). The evidence of the non-movant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. But if the non-movant identifies “evidence [that] is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted).
The Court has already determined that Arizona law governs Plaintiffs' FTCA claims. (Doc. 38 at 7) (“[F]ederal courts have applied the law of the state as the law of the place, even when the allegedly negligent act occurred on Indian land.”). Defendant seeks summary judgment on all four Counts in the FAC. With regard to Count I, Defendant argues Plaintiffs cannot establish the existence of a duty to warn. Defendant next asserts that it is immune from liability under Count II for negligent hiring, retention and/or supervision because the discretionary function exception to the Government's waiver of sovereign immunity applies here. Defendant further argues Plaintiffs have not met their burden in establishing a claim for invasion of privacy under Count III and alternatively, it cannot be held vicariously liable for an employee who was not acting within his scope of employment. Lastly, under Count IV, Defendant represents it did not engage in extreme and outrageous conduct with the requisite intent that Plaintiffs would suffer emotional harm.
The Court finds FDIHB owed Plaintiffs a legal duty under Count I, and there are disputes of fact material underlying Counts II and III. Summary judgment in favor of Defendant is therefore improper on those Counts. Moreover, the Court finds the discretionary function exceptions applies to bar Defendant from liability under some, but not all, of Plaintiffs' theories of negligent hiring, supervision, and retention. Summary judgment in favor of Defendant is thus improper on Count IV. The Court will address each of Defendant's arguments in turn.
As alleged in the FAC, Plaintiffs' negligence failure to warn claim asserts that FDIHB had a duty to “warn and protect its employees from any danger of which FDIHB knew or should have known” including the duty to “warn its employees and protect them from a sexual predator in FDIHB's employ . . . .” (Doc. 39 at ¶¶ 198-200). In its Motion, Defendant argues this claim should be dismissed because “no such duty to warn employees of their co-worker's criminal history exists in law.” (Doc. 67 at 14).[3] Defendant further asserts that no such duty can exist because FDIHB was prohibited from disclosing any information it obtained in response to the background check it ran on Sloan under the Fair Credit Reporting Act (“FCRA”). (Id. at 13).[4] The Court will address these arguments in turn.
To bring a negligence claim, a plaintiff must show “(1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). The existence of a duty is a legal question for the Court to decide. Id. “Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained.” Id. The other elements of a negligence action are factual issues for the jury to resolve. Id.
The parties disagree on whether Defendant owed Plaintiffs a duty to warn them about Sloan. The element of duty is reserved for determining whether the relationship between individuals “imposes upon one a legal obligation for the benefit of the other.” Markowitz v. Arizona Parks Bd., 706 P.2d 364, 367 (Ariz. 1985) (citations omitted). Arizona common law recognizes various categorical relationships that give rise to the existence of a duty. Gipson, 150 P.3d at 232; see also Bond v. Cartwright Little League, Inc., 536 P.2d 697, 703 (Ariz. 1975). Arizona employers have a duty to provide a reasonably safe workplace and to warn employees of dangers in the workplace of which the employer knows or should know and of which the employee is unaware and unlikely to discover. Flynn v. Lindenfield, 433 P.2d 639, 642 (Ariz.Ct.App. 1967); see also Robertson v. Sixpence Inns of Am., Inc., 789 P.2d 1040, 1045 (Ariz. 1990).
It is undisputed an employer-employee relationship exists between FDIHB and the Plaintiffs. FDIHB thus owed Plaintiffs a duty to warn them of danger in the workplace as a matter of law. Defendant admits as much in its Reply. (See Doc. 77 at 2) ( that FDIHB “owed a duty to warn its employees of known hazardous conditions in their workplace.”). Under Arizona law, that is the end of the Court's threshold inquiry into whether a duty exists. Gipson, 150 P.3d at 230.
Indeed the Arizona Supreme Court has repeatedly emphasized the distinct analyses between duty and breach. See e.g., Id. While the existence of a duty is an issue of law, whether there has been a breach of duty “is an issue of fact that turns on the specifics of the individual case.” Id. Lower courts have been corrected for erroneously confusing the “issue of the existence of any duty with the specific details of the required standard of conduct.” Robertson, 789 P.2d at 1044; see also Markowitz, 706 P.2d at 367 (“These details of conduct bear upon the issue of whether the defendant who does have a duty has breached the applicable standard of care and not whether such a standard of care exists in the first instance.”). Such confusion leads courts to wrongfully decide on a general basis whether a defendant had a duty to take certain action. Markowitz, 706 P.2d at 369. Arizona courts have unequivocally stated, for example, that “foreseeability is not a factor to be considered by courts when making determinations of duty;” rather, it is a factual inquiry reserved...
To continue reading
Request your trial