Kalil v. Johanns

• Decision Date: 26 July 2005
• Docket Number: No. CIV.A.01-2194 RJL.,CIV.A.01-2194 RJL.
• Parties: Thomas KALIL, Plaintiff, v. Mike JOHANNS, Secretary, United States Department of Agriculture, et al., Defendants.
• Court: U.S. District Court — District of Columbia

407 F.Supp.2d 94

Thomas KALIL, Plaintiff, v. Mike JOHANNS, Secretary, United States Department of Agriculture, et al., Defendants.

No. CIV.A.01-2194 RJL.

United States District Court, District of Columbia.

July 26, 2005.

George Michael Chuzi, Michelle L. Perry, Kalijarvi, Chuzi & Newman, P.C., Washington, DC, for Plaintiff.

Heather D. Graham-Oliver, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

LEON, District Judge.

Plaintiff, Thomas Kalil, initiated the instant action against Mike Johanns,¹ Secretary of the United States Department of Agriculture ("USDA"), and plaintiff's two supervisors, Carolyn Cooksie and James Little, in their individual capacities, (collectively "defendants") for, inter alia, intentional infliction of emotional distress ("HED") and violations of plaintiff's rights under the First Amendment to the United States Constitution. Presently before the Court is Cooksie and Little's renewed motion for partial dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. After due consideration of the parties' submissions, the relevant law, and the entire record herein, the Court GRANTS defendants' motion.²

I. FACTUAL BACKGROUND

Plaintiff, Thomas Kalil, has worked at the USDA since 1973, eventually becoming the Assistant Deputy Administrator for Farm Loan Programs in the Farm Service Agency. Am. Compl. ¶¶ 5, 12-15. Kalil initiated the instant suit against the Secretary of the USDA under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq., and under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq. Am. Compl. ¶ 1. Kalil also sued Carolyn Cooksie and James Little, his immediate supervisors, in their individual capacities, for HED (Count IV) and violations of his First Amendment rights (Count V) stemming from his supervisors' involvement in his temporary suspension. Am. Compl. ¶ 2. Kalil's HED claim is based on a myriad of allegations. For example, he claims: Cooksie excluded him from staff meetings, denied him merited salary increases, denied him accurate performance assessments, gave him unfavorable assignments that were not grade appropriate and forced him to be supervised by subordinates. See Am. Compl. ¶¶ 56-60. Kalil alleges that these actions caused a decline in his mental, emotional and physical health. Id. ¶ 58.

Kalil's First Amendment claim stems from Cooksie's suspension of Kalil in 2002 for fourteen days. Id. ¶ 91. Kalil was suspended for a series of alleged activities; to wit: (1) interfering with ongoing litigation; (2) releasing a report outside the Farm Service Agency without prior approval; (3) failure to treat his supervisor with respect; and (4) failure to follow instructions. Defs.' Rep., Attach. B at 2. Kalil maintains that defendants' explanations are pretextual and that he was suspended as retaliation for his involvement in the "Stahl" litigation, which was a class action suit filed by minority farmers against the USDA. See Am. Compl. ¶ 91. Moreover, Kalil contends that his involvement in the "Stahl" litigation was a valid exercise of his First Amendment right to "report [] matter[s] of public concern." Id. ¶ 129. Kalil appealed his suspension to the Merit Systems Protection Board (MSPB), but his request for relief was denied. Defs.' Rep., Attach. B at 4. The MSPB found that the agency had proven that it would have taken the same personnel action regardless of any whistle-blowing actions taken by Kalil. Id.

II. ANALYSIS

A. Standard of Review

This Court will grant a motion to dismiss for failure to state a claim when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); FED. R. CIV. P. 12(b)(6). The Court must accept all of the allegations in the plaintiff's complaint as true and construe them in the light most favorable to the plaintiff. See Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994); Konarski v. Brown, 293 F.Supp.2d 70, 72 (D.D.C.2003).

Although a similar standard of review is used when reviewing a motion to dismiss for lack of subject matter jurisdiction, Caesar v. United States, 258 F.Supp.2d 1, 2 (D.D.C.2003); Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999), the most glaring difference between the standards is that the Court may consider matters outside of the pleadings when resolving challenges to subject matter jurisdiction. Konarski, 293 F.Supp.2d at 72 n. 1 (citing Hosey v. Jacobik, 966 F.Supp. 12, 13 (D.D.C.1997)). On a Rule 12(b)(1) motion, the plaintiff bears the burden of proof. Vanover, 77 F.Supp.2d at 98 (citing Pitney Bowes Inc. v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998)).

B. Tort Claim

Defendants Cooksie and Little contend that plaintiff's claim for HED against them in their individual capacities should be dismissed because: (1) they were acting within the scope of their employment, (2) the United States should be substituted as the proper defendant, and (3) plaintiff's exclusive remedy lies with the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq. ("FECA"). The Court agrees.

1. Scope of Employment

The Federal Tort Claims Act ("FTCA") allows the Attorney General to certify that an employee who has been sued for a wrongful or negligent act was acting within the scope of his employment at the time of the alleged incident. 28 U.S.C. § 2679(d)(1) (2000). "Upon certification, the employee is dismissed from the action and the United States is substituted as Defendant." Schneider v. Kissinger, 310 F.Supp.2d 251, 264 (D.D.C.2004). However, the government's certification is not conclusive because it is the Court that makes the final determination as to the scope of employment issue. See Haddon v. United States, 68 F.3d 1420, 1423 (D.C.Cir.1995). If the Court concludes that the United States is the proper defendant, "the plaintiff's only recourse is to proceed under the Federal Tort Claims Act." Id.

State law governs the issue of whether the conduct was within the scope of employment. Id. In that regard, the District of Columbia follows the RESTATEMENT (SECOND) OF AGENCY (1958) and takes an expansive view of conduct that is considered within the scope of employment. Id. at 1423-24; Weinberg v. Johnson, 518 A.2d 985, 988-90 (D.C.1986); Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976). The Restatement states that:

[c]onduct of a servant is within the scope of employment if, but only if:

[a] it is of the kind he is employed to perform; [b] it occurs substantially within the authorized time and space limits; [c] it is actuated, at least in part, by a purpose to serve the master; and [d] if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

RESTATEMENT (SECOND) OF AGENCY § 228(1).

Regarding the first prong of the Restatement, the District of Columbia law holds that conduct will be of the kind the servant is employed to perform if it is "of the same general nature as that authorized" or is "incidental to the conduct authorized." Haddon, 68 F.3d at 1423-24. With regard to the third prong, the Restatement's test states that conduct will be considered within the scope of employment if "it is actuated, at least in part, by a purpose to serve the master." RESTATEMENT (SECOND) OF AGENCY § 228(1). Conversely, conduct that is "too little actuated by a purpose to serve the master" will not be considered within the scope of employment. RESTATEMENT (SECOND) OF AGENCY § 229. The District of Columbia Circuit has interpreted this test to exclude any conduct that is "committed `solely for [the servant's] own purposes.'" Stokes v. Cross, 327 F.3d 1210, 1216 (D.C.Cir.2003). Therefore, our Circuit Court has construed acts to be within the scope of employment where self-interest is the predominate motive "so long as the agent is actuated by the principal's business purposes `to any appreciable extent'." Freiman v. Lazur, 925 F.Supp. 14, 19 (D.D.C.1996) (quoting Local 1814, Int'l Longshoremen's Ass'n v. Nat'l Labor Relations Bd., 735 F.2d 1384, 1395 (D.C.Cir.1984)). Similarly, intentionally tortious behavior is within the scope of employment when the employee acted at least in part by a desire to serve the employer's interest.³

Only the first and third prongs of the Restatement are relevant in this case. The first prong relates to whether the alleged tortious actions are the kind of actions that Cooksie and Little were employed to perform. See RESTATEMENT (SECOND) OF AGENCY § 228(1)(a). Although Kalil alleges numerous instances of disparate treatment by his supervisor,⁴ his main allegation is that Cooksie inflicted emotional distress by improperly suspending Kalil. Am. Compl. ¶ 124. And, although Kalil argues that the defendants "engaged in conduct which exceeded the appropriate authority of their positions," id., employee performance evaluations and recommending suspensions are within a supervisor's province. Therefore, Cooksie's conduct, which was subsequently upheld by Little, clearly falls under the rubric of conduct that is "of the same general nature as that authorized." Haddon, 68 F.3d at 1423-24.

The third prong relates to whether the conduct "is actuated, at least in part, by a purpose to serve the master." See RESTATEMENT (SECOND) OF AGENCY § 228(1)(a). Kalil states that the Amended Complaint "establish[es] that Cooksie was motivated more to protect herself than the Government thus rendering her conduct outside the scope of employment." Pl.'s Opp'n at 12. However, since the District of Columbia takes an expansive view of the scope of employment, Weinberg v. Johnson, 518 A.2d 985, 988-90 (D.C.1986); Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976), a supervisory decision regarding whether or not to suspend an employee should be considered "actuated, at least in part, by a...