Coleman v. U.S., 95-5916

• Decision Date: 05 August 1996
• Docket Number: No. 95-5916,95-5916
• Parties: 11 IER Cases 1731 Clifford COLEMAN, Jr., Plaintiff-Appellee, v. UNITED STATES of America and Angela Pinion, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 820

91 F.3d 820

11 IER Cases 1731

Clifford COLEMAN, Jr., Plaintiff-Appellee, v. UNITED STATES of America and Angela Pinion, Defendants-Appellants.

No. 95-5916.

United States Court of Appeals Sixth Circuit.

Argued and Submitted June 6, 1996.

Decided Aug. 5, 1996.

John D. Hays, Stephen L. Hogg (briefed), Stratton, May & Hays, Pikeville, KY, for Plaintiff-Appellee.

Dell W. Littrell, Asst. U.S. Atty., Office of the U.S. Atty., Lexington, KY, Barbara L. Herwig, U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC, John F. Daly (argued and briefed), U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC, for U.S.

Dell W. Littrell, Asst. U.S. Atty., Office of the U.S. Atty., Lexington, KY, Barbara L. Herwig, U.S. Dept. of Justice,, Appellate Staff, Civ. Div., Washington, DC, C. Tom Anderson, Pafunda & Anderson, Pikeville, KY, John F. Daly, U.S. Dept. of Justice, Appellate Staff, Civ. Div., Washington, DC, for Angela Pinion.

Joseph L. White, White, Conway & Adams (briefed), Louisville, KY, for amicus curiae.

Before: KENNEDY and NORRIS, Circuit Judges; MATIA, District Judge. ^*

MATIA, District Judge.

This malicious prosecution action was initially filed in Kentucky state court by the plaintiff-appellee herein, Clifford Coleman, Jr. The named defendant in that action was Angela Pinion, co-defendant-appellant along with the United States in the case under review. Acting under the authority of the Attorney General and pursuant to 28 U.S.C. § 2679(d)(2), the United States Attorney for the Eastern District of Kentucky then issued a certification indicating that Pinion was acting within the scope of her employment as a United States Postal Service ("USPS") employee when she filed the criminal complaint against Coleman that gave rise to the instant malicious prosecution litigation. ¹ Following the scope certification, the United States was substituted for Pinion as the party defendant, and this action was removed to the United States District Court for the Eastern District of Kentucky pursuant to 28 U.S.C. § 2679(d)(2).

The District Court subsequently granted Coleman's motion to reinstate Pinion as the party defendant, effectively overruling the Attorney General's scope certification. The court reasoned that because Pinion was neither contractually nor impliedly required to file the criminal complaint against Coleman, she was not acting within the scope of her employment in doing so. The District Court also denied the Government's motion to dismiss and remanded the case to state court. ²

The appellants now contend that the District Court erred in holding that Pinion was acting outside the scope of her employment when she filed her criminal complaint against Coleman. They argue that the United States should therefore be resubstituted as the party defendant and that the case should then be dismissed on grounds of sovereign immunity under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b). ³ For the reasons set forth below, we find that Pinion acted within the scope of her employment, and accordingly REVERSE the decision of the District Court.

I. Facts

Prior to the events that gave rise to this lawsuit, both Coleman and Pinion were employees of the USPS in Pikesville, Kentucky. Pinion was an accounting technician and Coleman was her supervisor. Following the investigation of complaints by other employees, Coleman was reprimanded in April of 1992 for poor performance as a supervisor, verbal abuse of employees, and use of unduly authoritarian methods of supervision. After Coleman appealed his reprimand, a number of female employees including Pinion came forward with allegations of sexual harassment and physical assault against him. Concluding that these latter allegations were fully supported, postal authorities ordered Coleman's transfer and demotion. Coleman appealed this decision, and a hearing was scheduled. Pinion maintained that Coleman contacted her prior to the hearing in an effort to learn the substance of her testimony, and in the process offered her a bribe to change her version of the events under investigation. After a postal official informed Coleman that Pinion would testify about the bribery attempt, Coleman withdrew his appeal. A subsequent attempt by Coleman to reopen the proceedings was unsuccessful.

Following the dismissal of Coleman's appeal, he was seen driving repeatedly back and forth in front of the post office where Pinion worked in an apparent effort to intercept her upon her departure. Pinion avoided Coleman for some time, but eventually encountered him when she was leaving work on December 8, 1992. Pinion alleged that Coleman followed her in his car, attempted to induce her to pull over, and at one point struck her car with his. After the confrontation ended and she returned home, Pinion telephoned the Superintendent of Postal Operations to report the incident. Upon discussion of the matter the next morning, a postal inspector requested that Pinion file criminal charges against Coleman. Pinion did so, accompanied by postal officials, and a warrant was issued for Coleman's arrest. As a condition of his release from police custody, Coleman was forbidden to have any contact with either Pinion or any other postal employee.

Coleman was subsequently acquitted by a jury on charges of second degree wanton endangerment and second degree stalking. However, after determining that Coleman's conduct posed a danger to his fellow employees, the postal service placed him on off-duty, non-pay status and eventually terminated his employment. On appeal from this action, a labor arbitrator ruled that Pinion's allegations were amply corroborated and that Coleman's explanations were not credible. Thereafter, Coleman filed the instant malicious prosecution suit against Pinion.

II. Jurisdiction

The order resubstituting Pinion in place of the United States as party defendant is a final decision of a district court, reviewable pursuant to 28 U.S.C. § 1291. Kimbro v. Velten, 30 F.3d 1501, 1503 (D.C.Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995); Jamison v. Wiley, 14 F.3d 222, 230 (4th Cir.1994); Aliota v. Graham, 984 F.2d 1350, 1353 (3d Cir.), cert. denied, 510 U.S. 817, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993); Mitchell v. Carlson, 896 F.2d 128, 133 (5th Cir.1990).

III. Discussion

Section 2679(d)(2) of Title 28 of the United States Code provides that:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant....

Although the Attorney General's certification provides prima facie evidence that an employee's conduct is within the scope of employment, RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir.1996), it "does not conclusively establish as correct the substitution of the United States as defendant in place of the employee." Gutierrez de Martinez v. Lamagno, --- U.S. ----, ----, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995). The Attorney General's certification is instead reviewable first by the district court, id., and then on the appellate level as a question of law under a de novo standard. See Forrest City Mach. Works, Inc. v. United States, 953 F.2d 1086, 1088 n. 4 (8th Cir.1992).

Because the scope of employment issue is governed by the law of the state in which the conduct at issue occurred, 28 U.S.C. § 1346(b); RMI Titanium Co., 78 F.3d at 1143, Kentucky law governs that question in this case. To determine whether a particular employee action is within the scope of employment, Kentucky courts consider the following: (1) whether the conduct was similar to that which the employee was hired to perform; (2) whether the action occurred substantially within the authorized spacial and temporal limits of the employment; (3) whether the action was in furtherance of the employer's business; and (4) whether the conduct, though unauthorized, was expectable in view of the employee's duties. Flechsig v. United States, 991 F.2d 300, 303 (6th Cir.1993); Frederick v. Collins, 378 S.W.2d 617, 619 (Ky.Ct.App.1964); Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81, 83 (1946). We examine each of these factors as they apply to the circumstances of the instant case.

A. Whether Pinion's conduct was similar to that which she was hired to perform

This Court has recognized that the duties of an employee include those that he or she is "expressly or impliedly" hired to perform. Marcum v. United States, 324 F.2d 787, 790 (6th Cir.1963). Kentucky courts have likewise found that actions "reasonably incident" to an employee's more typical duties are within the scope of employment. Flechsig, 991 F.2d at 303 (quoting John v. Lococo, 256 Ky. 607, 76 S.W.2d 897, 898 (1934)). Whether the filing of Pinion's complaint was the type of act she was employed to perform is not therefore a question that can be answered simply by observing that as an accounting technician, it was not part of her normal routine to file criminal charges. Instead, we must examine Pinion's responsibilities as a postal worker holistically to determine whether they would reasonably include the type of activity at issue.

We begin with the proposition that if Pinion had filed an internal grievance as an actual step in an ongoing disciplinary proceeding, her conduct would have fallen within the scope of employment. This...