Dickson v. Marino

• Decision Date: 04 August 2020
• Docket Number: DA 19-0674
• Citation: 469 P.3d 159,400 Mont. 526,2020 MT 196
• Parties: Jacob Ross DICKSON, Appellant, v. Tori MARINO (f/k/a Tori Norman), Miranda Garding, Katherine Haegele, The American Federation of Government Employees, & John Does 1-10, Appellees.
• Court: Montana Supreme Court

400 Mont. 526

469 P.3d 159

2020 MT 196

Jacob Ross DICKSON, Appellant,

v.Tori MARINO (f/k/a Tori Norman), Miranda Garding, Katherine Haegele, The American Federation of Government Employees, & John Does 1-10, Appellees.

DA 19-0674

Supreme Court of Montana.

Submitted on Briefs: May 27, 2020

Decided: August 4, 2020

For Appellant: J. Ben Everett, Everett Law, PLLC, Anaconda, Montana

For Appellee: Timothy McKittrick, McKittrick Law Firm, P.C., Great Falls, Montana Mark L. Vinson, AGFE AFL-CIO, Washington, District of Columbia

Justice Beth Baker delivered the Opinion of the Court.

¶1 Jacob Ross Dickson appeals the First Judicial District Court's order dismissing his complaint on the ground that his state common-law tort claims for slander and emotional distress are preempted by the federal Civil Service Reform Act because they involve "prohibited personnel practices" within the definition of the federal law. We hold that the District Court prematurely dismissed the case without the factual record needed to determine preemption. We accordingly reverse and remand for further development of the facts.

FACTUAL AND PROCEDURAL BACKGROUND¹

¶2 Dickson worked as Chief of Prosthetics and Sensory Aid Services at the Montana Veterans Administration Health Care System ("Montana VA"). At the same time, Defendant Tori Marino was employed as a medical support assistant with the Montana VA. Defendant American Federation of Government Employees ("AFGE") is an unincorporated labor union representing government and private sector employees. Defendants Haegele and Garding, also employees of the Montana VA, serve as a local union president and union steward, respectively, for the AFGE. Dickson was not a member of the AFGE.

¶3 Dickson and Marino had consensual sex on multiple occasions, including an encounter on May 27, 2016, in Dickson's office at the Montana VA. In June 2016, Marino and Garding met with the Montana VA Police to falsely report that Dickson had sexually assaulted Marino on May 27. The Montana VA Police and the Veterans' Administrative Office of Inspector General ("OIG") investigated Marino's allegation; they concluded that Marino and Dickson had engaged in a consensual sexual relationship and that they lacked sufficient evidence to charge Dickson with sexual assault. The government charged Marino and Dickson with unlawful sexual activity but later dismissed the charge with prejudice.

¶4 In July, Marino signed a voluntary statement recanting the allegation and admitting that her relationship with Dickson was consensual. Marino later told Dickson that Garding and Haegele had encouraged her to falsely accuse Dickson of sexual assault to the Montana VA Police, to OIG, and to United States Senator Jon Tester's office, in order to avoid losing her job.

¶5 Dickson filed a complaint in the First Judicial District Court, Lewis and Clark County, against Marino, Garding, Haegele, and the AFGE, seeking damages for slander, intentional infliction of emotional distress, and negligent infliction of emotional distress.² Defendants Haegele, Garding, and AFGE (collectively "Union Defendants") moved to dismiss the complaint for failure to state a claim under M. R. Civ. P. 12(b)(6) and lack of subject matter jurisdiction under M. R. Civ. P. 12(b)(1). They argued in part that the Civil Service Reform Act ("CSRA" or the "Act") preempts Dickson's state-law tort claims. The District Court agreed. It determined that the CSRA "provides an exclusive remedy for, and therefore preempts, state law tort claims when those claims involve ... ‘prohibited personnel practices,’ under 5 U.S.C. § 2302." It held that the Union Defendants' conduct constituted a "prohibited personnel practice" and that the CSRA thus preempted Dickson's claims. This appeal followed.

STANDARD OF REVIEW

¶6 We review de novo a district court's ruling on a M. R. Civ. P. 12(b) motion to dismiss. Big Spring v. Conway (In re Estate of Big Spring) , 2011 MT 109, ¶ 20, 360 Mont. 370, 255 P.3d 121 (citation omitted); Western Sec. Bank v. Eide Bailly LLP , 2010 MT 291, ¶ 18, 359 Mont. 34, 249 P.3d 35 (citation omitted). The district court's determination is a conclusion of law that we review for correctness. In re Estate of Big Spring , ¶ 20 (citation omitted); Sinclair v. Burlington Northern & Santa Fe Ry. , 2008 MT 424, ¶ 25, 347 Mont. 395, 200 P.3d 46 (citation omitted).

DISCUSSION

¶7 Did the District Court err in granting the Union Defendants' motion to dismiss on the basis that Dickson's claims are preempted by the CSRA?

¶8 Congress enacted the CSRA to comprehensively overhaul the civil service system to "prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government." Gutierrez v. Flores , 543 F.3d 248, 253 (5th Cir. 2008) (citations omitted). The Act regulates the relationship between most federal civil service employees and their employers, in part by providing a remedial scheme through which federal employees may challenge "prohibited personnel practices" committed by their employers. Gilding v. Carr , 608 F. Supp. 2d 1147, 1150 (D. Ariz. 2009) ; Schwartz v. Int'l Fedn. of Prof'l & Tech. Eng'rs, AFL-CIO , 306 Fed. App'x 168, 172 (5th Cir. 2009) (per curiam); Brock v. United States , 64 F.3d 1421, 1424 (9th Cir. 1995). To resolve whether the CSRA preempts a state-law claim, courts must determine whether the challenged conduct falls within the scope of the CSRA's "prohibited personnel practices." Gilding , 608 F. Supp. 2d at 1151 (quoting Mangano v. United States , 529 F.3d 1243, 1246 (9th Cir. 2008) ). If it does, the lawsuit is preempted, and the Act's administrative remedies are the employee's only recourse. Gilding , 608 F. Supp. 2d at 1151 (quoting Mangano , 529 F.3d at 1246 ); see also Mahtesian v. Lee , 406 F.3d 1131, 1134 (9th Cir. 2005).

¶9 The CSRA defines "prohibited personnel practices" as taking "personnel actions" that violate its merit system principles, including treating employees "with proper regard for their privacy and constitutional rights." 5 U.S.C. § 2302(b)(1), (12) ; 5 U.S.C. § 2301(b)(2) ; see also Saul v. United States , 928 F.2d 829, 833 (9th Cir. 1991). In turn, the Act defines "personnel actions" to include among other things an appointment, a promotion, or a disciplinary or corrective action. 5 U.S.C. § 2302(a)(2)(A) ; see also Brock , 64 F.3d at 1424. Of significance here, "the prohibited conduct must be performed by a federal employee who has the authority ‘to take, direct others to take, or approve personnel action.’ " Murphree v. AFGE , 850 F. Supp. 2d 1256, 1264 (N.D. Ala. 2012) (quoting 5 U.S.C. § 2302(b) ).

¶10 Thus, for a federal employee's claim to be preempted, the challenged conduct must "constitute a ‘prohibited personnel practice’ as enumerated in the statute, must be committed by an employee who has the authority to take, recommend, or approve a personnel action against the plaintiff, and [ ] must constitute ‘personnel action’ as defined in the statute." Gilding , 608 F. Supp. 2d at 1151-52 (citations omitted).

¶11 The District Court concluded that the Union Defendants' alleged conduct—encouraging Marino to falsely accuse Dickson of sexual assault—constituted "corrective action" that violated Dickson's privacy or constitutional rights. Without addressing whether or how the Union Defendants had the required authority to take or recommend this "personnel action" against Dickson, the court concluded that their conduct fell within the ambit of "prohibited personnel practices" under the CSRA, thus preempting his claims. On appeal, Dickson challenges the District Court on two grounds, contending first that the Union Defendants' conduct is not "corrective action" necessary to constitute a "personnel action" under § 2302(a)(2)(A), and second, that the Union Defendants lacked the authority to take "personnel action" against him as required by 5 U.S.C. § 2302(b).³ We address each contention in turn.

¶12 "What constitutes personnel action is an issue that courts have grappled with, particularly in cases where the defendant is not the plaintiff's supervisor or takes action not typically considered traditional personnel action." Murphree , 850 F. Supp. 2d at 1264. Courts have broadly construed the term "personnel action." Murphree , 850 F. Supp. 2d at 1264 (citing Schwartz , 306 Fed. App'x at 173 ; Saul , 928 F.2d at 834 ; Carducci v. Regan , 714 F.2d 171, 174 n.3 (D.C. Cir. 1983) ; Greene v. AFGE, AFL-CIO, Local 2607 , 2005 WL 3275903, 2005 U.S. Dist. LEXIS 19983 (D.D.C. Sept. 7, 2005) ). In Schwartz , for example, the plaintiff, a senior administrative law judge, alleged that two union representatives forced him to step down from his position through persistent antagonism, such as accusing him of misconduct and filing grievances. Schwartz , 306 Fed. App'x at 170. He further alleged that the union representatives conspired to deprive him of his senior status, forcing him into inferior office space. Schwartz , 306 Fed. App'x at 170. The Fifth Circuit determined that the union representatives' alleged conduct constituted "personnel action" because it related to Schwartz's working conditions. Schwartz , 306 Fed. App'x at 173. In Dettrich v. Shinseki , 2011 WL 3204729, at *4–5, 2011 U.S. Dist. LEXIS 81837, at *12 (D. Idaho 2011), the court dismissed the plaintiff's state-law tort claims grounded in actions of her co-workers, who allegedly accessed her private psychiatric records and disseminated such information among the staff; held an "intervention" with the plaintiff to criticize her for forgetting things and making mistakes; made false allegations regarding the plaintiff's work habits; and asked inappropriate questions during the plaintiff's interview process. Because these actions "resulted in a reprimand by Plaintiff's supervisor and a subsequent Professional Standards Board review," the court found them covered by the CSRA's...