Bunyan v. United States
| Decision Date | 20 November 2020 |
| Docket Number | Case No. 8:18-cv-2210-T-36JSS |
| Citation | 501 F.Supp.3d 1264 |
| Parties | Steven BUNYAN, Plaintiff, v. UNITED STATES of America, Robert L. Wilkie, Secretary of the Department of Veterans Affairs, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Frank Michael Malatesta, Malatesta Law Office, Venice, FL, for Plaintiff.
Carolyn B. Tapie, Erin Choi, U.S. Attorney's Office, Tampa, FL, for Defendants.
This cause is before the Court on Plaintiff's Renewed Challenge to the United States of America's Certification and Substitution for Dr. Azneer (the "Renewed Challenge"), (Doc. 45), which Defendants oppose, (Doc. 47), and Defendants’ Motion to Dismiss and Incorporated Memorandum of Law (the "Motion to Dismiss"), (Doc. 40), which Plaintiff opposes, (Doc. 43). The Court, having considered the parties’ submissions and being fully advised in the premises, will deny the Renewed Challenge and grant-in-part and deny-in-part the Motion to Dismiss.
Steven Bunyan ("Plaintiff"), an employee of the Department of Veterans Affairs (the "Department") at the time, provided temporary relief for a patient sitter in a hospital room at the Bay Pines V.A. Medical Center on February 7, 2016. (Doc. 39 ¶¶1, 19). On that particular day, the hospital housed a patient in the room. Id. at ¶20. While in the room, Plaintiff observed the patient hide underneath his bed sheet and refuse to acknowledge Dr. Ira Azneer ("Dr. Azneer")—also an employee of the Department—when Dr. Azneer attempted to interact with the patient. Id. at ¶¶4, 20.
Dr. Azneer abruptly departed from the room, angrily exclaiming, "I don't have time for this shit." Id. Following Dr. Azneer's departure, the patient became agitated, especially after Plaintiff exchanged the patient's silverware for plasticware, and threatened Plaintiff. Id. at ¶¶20–22. Consequently, Plaintiff asked nurse Roslyn Martin ("Martin") to contact the V.A. Police Department, purportedly in accordance with hospital policy. Id. at ¶23.
Shortly thereafter, Dr. Azneer arrived in the room with Martin. Id. at ¶24. When Plaintiff explained what had occurred, Dr. Azneer countermanded Plaintiff's request to contact the V.A. Police Department, pointed his finger at Plaintiff, poked Plaintiff in the forehead, pushed Plaintiff's chest, and told Plaintiff to "sit his black self down and do his job." Id. (internal quotation marks omitted). Plaintiff "stepped back in a defensive manner" after Dr. Azneer pushed him. Id. at ¶25. Dr. Azneer "raised his cane in a threatening manner" towards Plaintiff, and the two men shouted at each other. Id. at ¶26. Dr. Azneer subsequently exited the room again and went to the nursing station. Id. at ¶27. Plaintiff also exited the room, but nurse Shannon Norman Spurlock ("Spurlock") grabbed Plaintiff. Id. at ¶28. Spurlock refused to release Plaintiff from her grip, despite Plaintiff's requests and assurances that he was calm. Id. After leaving the nursing station, Dr. Azneer swung his cane at Plaintiff, while Spurlock restrained Plaintiff, in an attempt to hit Plaintiff. Id. at ¶29. Plaintiff broke free from Spurlock's restraint and ducked to avoid the swing. Id. at ¶30. Plaintiff departed from this area and sat on a bench. Id. at ¶31. Spurlock followed him and sat on his lap. Id. Supervisor Donna Butler advised Plaintiff to go home. Id. at ¶32.
Before Plaintiff could leave, Christopher Anglin ("Anglin"), a Caucasian Bay Pines V.A. police officer, instructed him to stay for the investigation of the incident.2 Id. at ¶¶33, 34. During this time, Anglin sequestered Plaintiff with another police officer, but did not sequester Dr. Azneer, Spurlock, both of whom are also Caucasian, or any other individuals involved with the incident. Id. at ¶¶33, 34. Anglin made no attempt to learn or investigate Plaintiff's perspective of the incident. Id. at ¶34. Although Plaintiff expressed his desire to press charges against Dr. Azneer three times, Anglin did not acknowledge these requests. Id. Dr. Azneer was permitted to stand over witnesses as they offered their statements regarding the incident. Id. Furthermore, Anglin and Dr. Azneer pressured Spurlock to write a statement that Plaintiff harmed her, yet she later recanted her statement. Id. Once Anglin completed his investigation, he returned to Plaintiff and asked Plaintiff to waive his right to a union representative. Id. Plaintiff agreed to waive this right because he hoped that Anglin would take his statement, but Anglin instead arrested Plaintiff for battery. Id. Anglin handcuffed Plaintiff and transported him to jail. Id. at ¶35.
Following his arrest, Plaintiff was placed on administrative duties, which "depriv[ed] him of overtime and compensation." Id. at ¶38. Plaintiff was allegedly imprisoned and deprived of his liberty without probable cause. Id. at ¶36. Plaintiff filed a complaint with the Department for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), on April 5, 2016. Id. at ¶11. Plaintiff purportedly faced retaliation during the EEO process. Id. at ¶37. Debbie Williams ("Williams") and Kristine Konstantakos ("Konstantakos") asked Plaintiff to drop his Charge of Discrimination on or about December 13, 2016. Id. at ¶39. Williams aggressively attempted to pressure Plaintiff into "removing" his Charge of Discrimination "because it was in his best interest." Id. at ¶40 (internal quotation marks omitted). Plaintiff also claims that the Department gave Plaintiff's contact information to the Federal Bureau of Investigation ("FBI") "and otherwise conspired to pressure [Plaintiff] into not speaking out" regarding the Charge of Discrimination. Id. at ¶41. A purported FBI agent identifying herself as "Sonya Young" demanded access to Plaintiff's residence and questioned Plaintiff about his social media postings discussing his discrimination, retaliation, and the underlying facts. Plaintiff felt threatened by this conduct and unannounced visit. Id. Plaintiff also claims that his supervisor notified him "of a fact finding" on March 17, 2018, the day before his deposition, and questioned him about his "harassment" of Anglin. Id. at ¶42 (internal quotation marks omitted). The Department issued a final decision on April 9, 2019. Id. at ¶12. Plaintiff initiated this action on September 6, 2018, (Doc. 1 at 1), and filed his operative complaint on May 21, 2019, (Doc. 39 at 11).
Plaintiff brings this action against the United States of America, and Robert L. Wilkie, Secretary of the Department. Id. at ¶¶43–69. Plaintiff's operative complaint contains four claims. Id. First, Plaintiff brings a claim for "false arrest/false imprisonment and detention" under Florida law via the Federal Tort Claims Act, 28 U.S.C. § 2674, contending that the actions of the United States, by and through its agents and employees, "such as Anglin, constitute false arrest/false imprisonment and detention" of Plaintiff. Id. at ¶46. Next, Plaintiff brings a claim against Robert Wilkie, Secretary of the Department, for racial discrimination under Title VII, alleging that the Department subjected him to adverse employment actions by supervisory or non-supervisory personnel and that the actions described herein constituted a hostile work environment. Id. at ¶¶51, 53–54. Plaintiff also sues Robert Wilkie as the Secretary of the Department for retaliation under Title VII, contending that the Department subjected him to harassment and intimidation after he engaged in protected activity under Title VII by reporting racial discrimination and filing a complaint of discrimination. Id. at ¶¶58, 60–62. Finally, Plaintiff brings an assault claim, alleging that Dr. Azneer raised his cane in a threatening manner and swung his cane at Plaintiff to cause bodily harm, thereby causing Plaintiff to be in reasonable fear that Dr. Azneer would batter him. Id. at ¶¶64–69. This claim was initially lodged against Dr. Azneer individually, but the United States has been substituted for Dr. Azneer in accordance with the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the "Westfall Act") (Docs. 16 at 1–2; 44 at 14).
In support of its substitution, the United States provided the United States Attorney for the Middle District of Florida's certification that Dr. Azneer constituted a governmental employee acting in the scope of federal office or employment at the time of, and with respect to, the facts out of which Plaintiff's claim arises (the "Certification"). (Doc. 16-1 at 1). Plaintiff objected to the substitution. (Doc. 27 at 2–4). The Court declined to strike or otherwise deny the substitution of the United States for Dr. Azneer, stating that the United States would remain substituted for Dr. Azneer because the Court had not determined that Dr. Azneer, in fact, and not simply as alleged by Plaintiff, engaged in conduct beyond the scope of his employment. (Doc. 44 at 12, 14). However, given the fact-intensive nature of the inquiry, Plaintiff's allegations, and the response of Defendants,3 the Court exercised its broad discretion to order discovery limited to whether Dr. Azneer acted within the scope of his employment. Id. at 12–13. See also Glover v. Donahoe , 626 F. App'x 926, 930 (11th Cir. 2015) () (emphasis added). The Court explained that Plaintiff may renew his challenge, if he desired, following the completion of this discovery. (Doc. 44 at 13).
Now, following the completion of the limited discovery, Plaintiff renews his challenge to the Certification, (Doc. 45 at 2–4), which Defendants oppose, (Doc. 47 at 7–9). As...
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