Capozzi v. Department of Transp.

• Decision Date: 02 March 2001
• Docket Number: No. CIV. A. 98-11058-PBS.,CIV. A. 98-11058-PBS.
• Citation: 135 F.Supp.2d 87
• Parties: Victor CAPOZZI and General Aviation Services, Inc., Plaintiffs, v. DEPARTMENT OF TRANSPORTATION, Federal Aviation Administration, Sharon Felton, James Volner, Gary Clarke, William Wickes, Stephen Hull and Gary Lopez, Defendants.
• Court: U.S. District Court — District of Massachusetts

135 F.Supp.2d 87

Victor CAPOZZI and General Aviation Services, Inc., Plaintiffs, v. DEPARTMENT OF TRANSPORTATION, Federal Aviation Administration, Sharon Felton, James Volner, Gary Clarke, William Wickes, Stephen Hull and Gary Lopez, Defendants.

No. CIV. A. 98-11058-PBS.

United States District Court, D. Massachusetts.

March 2, 2001.

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Sharon D. Meyers, Strauss & Meyers, Salem, MA, Louis J. Muggeo, Danvers, MA, for Plaintiffs.

Barbara Healy Smith, U.S. Attorney's Office, Paul F. Kelly, Segal, Roitman & Coleman, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

Plaintiffs Victor Capozzi and General Aviation Services, Inc. ("GAS") bring this action¹ against the Federal Aviation Administration ("FAA"), claiming that they have been harassed by a series of regulatory delays and actions by Defendant Sharon Felton, an FAA employee, with whom Capozzi had an affair; and that other FAA employees retaliated against Plaintiffs when they complained to Felton's superiors about the harassment in violation of their First Amendment rights. Defendants have filed motions for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c). After a hearing, the Court allows the motions, but only in part.

II. BACKGROUND

When all reasonable inferences are drawn in favor of the non-moving parties, the verified complaint alleges the following facts.

Plaintiff Victor Capozzi of Beverly, Massachusetts owns and operates a Fixed Base Operation ("FBO") known as General Aviation Services, Inc. ("GAS"), which is located at the Beverly Airport. GAS provides aviation-related services, including flight training, air taxi, and commercial operations. GAS has eighteen to twenty aircraft employees and contracts with six independent certified flight instructors.

In January 1993, GAS applied to become a certified charter operation and needed to obtain FAA approval through the Flight Standard District Office ("FSDO") located at Hanscom Air Force Base. The FSDO team assigned to handle the certification included Defendant Sharon Felton.

Felton was the Principal Operations Inspector ("POI") assigned to GAS, and is employed by the FAA at the Flight Standard District Operations at the FAA office at Hanscom Air Base. The other defendants are also FAA employees.

While she was the POI of GAS, Felton had a consensual sexual relationship with Capozzi from June 1993 to October 1993 when Capozzi terminated the affair. At one point, Felton informed plaintiff that she sought psychiatric help for "compulsive addictive behavior." Scorned, Felton became angry with Capozzi and sought revenge against him in her capacity as POI. Capozzi reported this harassing behavior to Felton's supervisors — Defendant Clark, who is the Assistant FSDO Operator at the FAA office, and Defendant Lopez, Chief of Operations at the FSDO.

This remonstrance resulted in retaliation by FAA officials. Shortly after Capozzi complained to Felton's supervisors, four investigators were sent to GAS asking for records. When questioned as to the reason for reviewing all the records, Felton stated, "This is what you get for complaining."

Although the complaint is poorly drafted (see e.g., Compl. ¶ 34), Capozzi seems to be alleging the following chronology of harassment incidents:

— On March 24, 1994, Felton failed to appear for a scheduled appointment to interview the new Director of Operations for GAS; shut down GAS for a two-week period; and would not allow any planes to fly.

— On March 29, 1994, after a Chief Pilot was approved for GAS, Felton revoked the approval of the pilot, preventing him from flying for several weeks.

— In January 1995, Defendant Wickes, the new POI and a friend of Felton, told a GAS customer, Business Express, not to fly with GAS. As a result, Business Express stopped doing business with GAS.

— On January 26, 1995, Wickes and Felton interrogated GAS Captain Dawn Greer for more than one day, causing the captain's plane to be grounded overnight.

— Between December 12, 1994 and January 26, 1995, Defendant Volner unduly delayed by six weeks the approval of a newly purchased Cessna.

— In July 1995, Defendant Hull, the assistant POI for GAS, had a discussion with Candace Quinn, a GAS flight instructor, in which he said that he was aware of the claims of harassment by Plaintiffs; that Quinn should move on and not work with Plaintiffs; that the FAA wanted to take her certificate because she worked for Plaintiffs; and that Quinn should blame a minor air space violation on Plaintiffs. Allegedly, Hull also told Quinn that he would "take care of the violation" and then asked her for a date.

— On April 2, 1996, Lopez decided that because of the difficulties with Felton and the possibility of litigation by Plaintiff, Capozzi's position as an accident prevention counselor was not renewed.

— On an unspecified date, Plaintiffs were informed that there would be no FAA support, endorsement, sponsorship, or mailings to help with the annual fuel farm seminar run by Plaintiffs.

Capozzi continued to complain about the harassment. In response, Felton was assigned as the POI of a competing operator, but continued to work at Beverly Airport and to affront Plaintiff and GAS employees.

Plaintiff GAS claims that as a result of this pattern of retaliatory harassment, it suffered a loss of business advantage and other economic harm. Plaintiff Capozzi states that he has experienced depression, weight loss, insomnia and heart palpitations which required medical attention and treatment.

Plaintiffs filed a letter of claim dated January 26, 1996 and amended their letter of claim on May 17, 1996 pursuant to 28 U.S.C. § 2675(a).² There was no response. This action was filed on May 25, 1998.

III. DISCUSSION

1. Standard for Motion to Dismiss

In evaluating a motion to dismiss a complaint for failure to state an actionable claim, a court must accept as true all well-pleaded factual averments and indulge all reasonable inferences in the plaintiff's favor. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (holding that federal courts may not apply a heightened pleading standard in civil rights cases). In a civil rights action, a plaintiff must plead specific facts from which to infer illegal motive with respect to constitutional claims in which "improper motive" is an essential element for the plaintiff to prove. Judge v. City of Lowell, 160 F.3d 67, 74 (1st Cir.1998). Bald assertions, unsupportable conclusions, circumlocutions, and the like need not be credited. Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990); Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989). It is only when the facts alleged, if proven, will not justify recovery that an order of dismissal under Rule 12(c) may stand. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988).

2. Count One — Civil Rights Violations (§ 1983 and MCRA)

The individual defendants move to dismiss the civil rights claims under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. L. Ch. 12, § 11(I), in Count One on two grounds. First, they correctly point out that none of the individual defendants, all of whom are federal employees, is a person "acting under color of state law." Cardozo v. Graham, 848 F.Supp. 5, 10 (D.Mass.1994) (quoting Chatman v. Hernandez, 805 F.2d 453, 455 (1st Cir.1986)) ("The language of 42 U.S.C. § 1983 `applies to persons acting under color of state law and not to persons acting pursuant to federal law.'"). Therefore, there is no cause of action under § 1983.

Second, Defendants argue that the cause of action under the MCRA is barred under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679(b)(1), which provides an exclusive remedy for all claims against federal employees acting within the scope of their employment except those set out in § 2679(b)(2), involving alleged violations of federal statutes and the federal constitution. United States v. Smith, 499 U.S. 160, 165, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (holding that the FTCA immunizes federal employees from suit even when the FTCA exception precludes recovery against the United States).

Plaintiff contends that Felton was not acting within the scope of her employment, as required under 28 U.S.C. § 2679(b)(1), when she engaged in the alleged retaliatory actions, and urges this Court to strike the Attorney General's certification to the contrary. The Court has the discretion to do so; scope of employment certifications by the government are not conclusive and are subject to judicial review. Lyons v. Brown, 158 F.3d 605, 607 (1st Cir.1998) (involving a claim of sexual harassment against a federal employee). The Court must evaluate each act or incident alleged to be a violation of civil rights under the scope of employment test. Id. Capozzi has the burden of proof to rebut the Attorney General's certification Id. at 610.

To determine whether certification is appropriate, a court must follow state law governing scope-of-employment. Id. Massachusetts courts adhere to a three-pronged scope-of-employment inquiry as to whether: (1) the conduct was of the kind the agent was employed to perform; (2) the conduct occurred substantially within the authorized time and space limits; and (3) the conduct was motivated, at least in part, by a purpose to serve the employer. Operation Rescue Nat'l v. United States, 975 F.Supp. 92, 106 (D.Mass.1997) (citing Wang Labs., Inc. v. Bus. Incentives, Inc., 398 Mass. 854, 859, 501 N.E.2d 1163 (1986)). The Wang inquiry is based on the agent's actual and customary, rather than formally described, duties. Id. at 107.

While Felton's sexual affair with Plaintiff was certainly not the kind of conduct Felton was employed to perform, Plaintiffs have produced no evidence with respect to the...