Gindi v. Norton
| Citation | 216 F.Supp.3d 199 |
| Decision Date | 02 November 2016 |
| Docket Number | Civil Action No. 15-13869-NMG |
| Parties | Philip R. GINDI, Plaintiff, v. Ronald B. NORTON, Defendant. |
| Court | United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts |
Charles S. Nierman, Law Office of Charles Scott Nierman, Methuen, MA, for Plaintiff.
Anita Johnson, United States Attorney's Office, Boston, MA, for Defendant.
Plaintiff Philip Gindi ("Gindi" or "plaintiff") alleges that defendant Ronald Norton ("Norton" or "defendant") committed, inter alia , intentional and/or negligent infliction of emotional distress and assault upon him. Norton's motion to dismiss and Gindi's motion to remand are now pending before the Court. For the reasons that follow, the motion to dismiss will be allowed and the motion to remand will be denied as moot.
Gindi is a civilian employee of the United States Air Force at the Hanscom Air Force Base ("Hanscom") in Bedford, Massachusetts. Norton was Gindi's branch chief and supervisor during the time period at issue. Gindi's claims arise from interactions that occurred while he was at work. He alleges that Norton became very upset after he responded to a work-related email. According to Gindi, Norton "shouted" and "sh[ook] his finger" in Gindi's face in an intimidating manner and "threatened to ... give him a bad review." This purportedly resulted in Gindi becoming "physically ill" and requiring "medical intervention".
In October, 2015 Gindi filed a complaint in Massachusetts District Court alleging 1) violation of the Massachusetts Discrimination Statute, M.G.L. c. 151B, 2) discrimination under the Civil Services Reform Act, 5 U.S.C. § 2301(b), 3) retaliation for whistle blowing and 4) eight common law torts. Defendant subsequently removed the case to the United States District Court for the District of Massachusetts. Thereafter, defendant filed a statement of Carmen Ortiz, the United States Attorney for the District of Massachusetts, ("U.S. Attorney") certifying that Norton was acting within the scope of his employment during the events at issue and substituting the United States as the defendant for the common law tort claims.
Defendant has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that plaintiff has failed to state claims upon which relief can be granted. Plaintiff has, in turn, filed a motion to remand the case to state court and an opposition to Norton's substitution of the United States as a defendant. Those motions are the subject of this memorandum.
To survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must contain "sufficient factual matter" to state a claim for relief that is actionable as a matter of law and "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible if, after accepting as true all non-conclusory factual allegations, the court can draw the reasonable inference that the defendant is liable for the misconduct alleged. Ocasio – Hernandez v. Fortuno – Burset , 640 F.3d 1, 12 (1st Cir. 2011). A court may not disregard properly pled factual allegations even if actual proof of those facts is improbable. Id. Rather, the relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look beyond the facts alleged in the complaint, documents incorporated by reference therein and facts susceptible to judicial notice. Haley v. City of Boston , 657 F.3d 39, 46 (1st Cir. 2011).
Defendant moves to dismiss all 12 counts in the complaint. Plaintiff opposes only the dismissal of Count VIII, intentional infliction of emotional distress, Count IX, negligent infliction of emotional distress, and Count XII, assault. Accordingly, this memorandum will address only the three viable counts.
In defendant's view, the remaining counts should be dismissed because they are 1) preempted by the CSRA, 2) unripe for review and 3) exempted from the sovereign immunity waiver under the Federal Torts Claims Act ("FTCA"). Finally, defendant contends that plaintiff has failed to state claims for infliction of emotional distress.
Id. The CSRA also encompasses remedial actions based on employee performance. Id. Courts "jealously guard[ ]" the CSRA against judicial intrusion, Montplaisir v. Leighton , 875 F.2d 1, 3 (1st Cir. 1989), and the First Circuit Court of Appeals has determined that the CSRA preempts "work-related tort claims." Roth , 952 F.2d at 615 (internal quotation and citation omitted).
Plaintiff's contention that his claims are not preempted by the CSRA because they would be actionable torts outside of the workplace is incorrect. The purported infliction of emotional distress and assault occurred at work with respect to work-related emails and a threatened poor performance review. They are precisely the sort of work-related incidents that the CSRA preempts. 5 U.S.C. § 2302(a)(2)(A)(viii) ; see also Taydus v. Cisneros , 902 F.Supp. 288, 292 (D. Mass. 1995) () (citation omitted).
The government (on behalf of Norton) submits that, even if Gindi's claims were not preempted by the CSRA and properly pled under the FTCA, plaintiff has failed to exhaust administrative remedies and the claims are barred by the doctrine of sovereign immunity. Gindi responds that the FTCA does not apply because the claims are against Norton in his personal capacity and Gindi therefore opposes the substitution of the United States as a party.
Pursuant to the Westfall Act, federal employees who supposedly commit a tort during the course of their employment are entitled to immunity. 28 U.S.C. § 2679(b)(1), (d) ; see also Aversa v. United States , 99 F.3d 1200, 1207–08 (1st Cir. 1996). Upon a certification from the Attorney General that a federal employee was acting within the scope of his employment, the United States will be substituted as a party and the employee will be dismissed. 28 U.S.C. § 2679(d)(1) ; Davric Maine Corp. v. U.S. Postal Service , 238 F.3d 58, 65 (1st Cir. 2001).
Certifications may, however, be judicially reviewed. Aversa , 99 F.3d at 1208. If the plaintiff demonstrates that the federal employee was acting beyond the scope of his employment, as defined by the pertinent state law, the court will re-substitute the federal employee as the defendant. Davric , 238 F.3d at 65–66. When the proponent of the substitution avers that the federal employee was acting within the scope of his employment, even if the allegations in the complaint are true, the request for substitution is evaluated "on the face of the complaint (akin to a motion to dismiss)." Id. at 66. A plaintiff who opposes the substitution has the burden of proving that the acts occurred outside of the scope of employment. Id.
The U.S. Attorney has certified that Norton's purported conduct occurred within the scope of his employment and has filed a notice substituting the United States as the defendant. Plaintiff opposes the substitution on the grounds that Norton was acting outside the scope of his employment because he was "not permit[ted] to commit assault" as part of his job, the purported acts did not further the interests of the Air Force and Norton was not hired to commit such acts.
Kelly v. United States , 924 F.2d 355, 356 (1st Cir. 1991) (quoting Wang Laboratories, Inc. v. Business Incentives, Inc. , 398 Mass. 854, 859, 501 N.E.2d 1163 (1986) ).
Envisn, Inc. v. Davis , No. 11–cv–12246–FDS, 2012 WL 1672887, at *3–4 (D. Mass. May 11, 2012) (quoting Dwyer v. Hearst Corp. , 3 Mass.App.Ct. 76, 79–80, 323 N.E.2d 738 (1975) ). Even "a spontaneous act of frustration" is within the scope of employment if it relates to an employee's management duties. See id. (internal quotation and citation omitted).
Norton's purported acts were within the scope of his employment. First, supervision of employees' work-related emails and performance reviews are managerial duties Norton would be expected to perform. Second, the alleged incident occurred at Hanscom and thus was in authorized time and space limits. Finally, Norton's supposed outburst was an act of frustration motivated, at least in part, by his management duties. Accordingly, plaintiff's challenge of government's substitution fails and the United...
To continue reading
Request your trial
-
Ruiz-Justiniano v. U.S. Postal Serv.
...for intentional infliction ofemotional distress. Blankenship's state claims are preempted by the CSRA."); see also Gindi v. Norton, 216 F. Supp. 3d 199, 203 (D. Mass. 2016) ("The purported infliction of emotional distress and assault occurred at work with respect to work-related emails and ......
-
Connolly v. Woburn Pub. Schs.
... ... Similarly, mere expressions of ... anger or frustration by supervisors, without more, do not ... qualify. See Gindi v. Norton , 216 F.Supp.3d 199, 206 ... (D. Mass. 2016). And even insults and threats are normally ... insufficient. Foley , 400 Mass. at ... ...
-
Gabriel v. Wells Fargo Bank Nat'l Ass'n
...2012). Negligent infliction of emotional distress requires, among other elements, a showing of negligent conduct. Gindi v. Norton, 216 F. Supp. 3d 199, 205 (D. Mass. 2016). Plaintiff cannot recover for either intentional or negligent infliction of emotional distress because there is no genu......
-
Ringler v. Leidos, Inc.
...construed restrictively' and intentional torts lie within the scope of employment in a 'variety of situations.'" Gindi v. Norton, 216 F. Supp. 3d 199, 204 (D. Mass. 2016) (quoting Com. v. Jerez, 457 N.E.2d 1105, 1108 (Mass. 1983)). Darkow's actions were done within the scope of his employme......