McHugh v. University of Vermont

• Decision Date: 04 June 1992
• Docket Number: D,No. 1694,1694
• Citation: 966 F.2d 67
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 43, 59 Empl. Prac. Dec. P 41,537, 61 USLW 2032, 75 Ed. Law Rep. 1008, 7 IER Cases 1801 Janet H. McHUGH, Plaintiff-Appellee, v. UNIVERSITY OF VERMONT; Christopher Wheeler; James P. Alexander; and United States of America (U.S. Army), Defendants, Christopher Wheeler, Defendant-Appellant. ocket 91-6062.
• Court: U.S. Court of Appeals — Second Circuit

Page 67

966 F.2d 67

59 Fair Empl.Prac.Cas. (BNA) 43, 59 Empl.

Prac. Dec. P 41,537,

61 USLW 2032, 75 Ed. Law Rep. 1008, 7

IER Cases 1801

Janet H. McHUGH, Plaintiff-Appellee, v. UNIVERSITY OF VERMONT; Christopher Wheeler; James P Alexander; and United States of America (U.S Army), Defendants Christopher Wheeler, Defendant-Appellant.

No. 1694, Docket 91-6062.

United States Court of Appeals Second Circuit.

Argued June 11, 1991.

Decided June 4, 1992.

Jacob M. Lewis, Civil Div., Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., George J. Terwilliger, III, U.S. Atty., Barbara L. Herwig, Civil Div., Dept. of Justice, Washington, D.C., of counsel), for defendant-appellant.

Michael J. Gannon, Burlington, Vt. (Pierson, Wadhams, Quinn & Yates, of counsel), for plaintiff-appellee.

Before: FEINBERG, NEWMAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

This appeal involves the power of the United States to substitute itself as a defendant for a federal employee by certifying that acts of sexual and religious harassment allegedly committed by the employee were within the scope of his employment. Judge Parker held that Major Christopher Wheeler, United States Army, was acting outside the scope of his employment in committing the alleged acts and declined to substitute the United States and to dismiss the action against him, 758 F.Supp. 945. We affirm.

1. The Complaint and Substitution Motion

Janet H. McHugh was a secretary at the University of Vermont. From February to July 1987, she was assigned to Wheeler, an instructor in the Department of Military Studies. She alleges that Wheeler engaged in several acts of sexual and religious harassment during that period. More than two years after those acts, McHugh brought suit in state court against the University, Lt. Col. James P. Alexander and Wheeler. Various federal claims were alleged, and the University removed the action to the District of Vermont.

On the only claim relevant here, McHugh's original complaint alleged that "[p]laintiff was sexually and religiously harassed by a co-worker, Major Christopher Wheeler," and, that, after complaining to Wheeler's supervisor, Lt. Col. Alexander, she was discharged in retaliation. On August 22, 1990, Acting United States Attorney Charles Caruso, pursuant to authority delegated by the Attorney General, 28 C.F.R. § 15.3 (1991), certified that Alexander and Wheeler were acting within the scope of their employment at the time of the incidents alleged in the complaint. Based on this certification, Alexander and Wheeler moved, pursuant to 28 U.S.C. § 2679(d)(2) (1988), see Note 3, infra, to substitute the United States as defendant and then to dismiss the complaint against them. In the alternative, they moved for a more definite statement of McHugh's allegations. On November 12, 1990, McHugh, with the district court's permission, filed an amended complaint. The amended complaint alleged in pertinent part:

5. On or about the week of February 17, 1987, Plaintiff began work as a secretary III in the Military Studies Department of [the University of] Vermont.

6. There, she was subjected to callous and insulting remarks of both religious and sexual nature, creating a hostile working environment. Major Christopher Wheeler was a co-worker and/or immediate supervisor. Major Wheeler repeatedly joked about Plaintiff's contracting AIDS, stating that he hoped she would be able to avoid infection over the summer while he was away at camp. Major Wheeler repeatedly suggested to Plaintiff that she must be living with someone. On occasion, Major Wheeler provided his definition of a "secretary" as a paid whore. Major Wheeler observed that it was "a good day to watch Catholic babies burn." Major Wheeler produced and sent to Plaintiff a print-out which stated:

"Dear Mrs. McHugh,

As your printer, I want to thank you for all the TLC!!! But, my ribbon is tired and old. Please buy me a new one!! I will make my kids Catholic if you do!!"

* * * * * *

7. Major Wheeler's conduct created a hostile work environment and caused severe emotional, and resulting physical, harm to Plaintiff.

8. Plaintiff complained about this behavior to her supervisor and Major Wheeler's supervisor, Lt. Col. James P. Alexander, pursuant to the UVM "Policy Statement on Sexual Harassment of Faculty & Staff,"....

9. Plaintiff was fired by Lt. Col. Alexander in retaliation for her complaints against Major Wheeler.

With regard to the motion to substitute the United States, Judge Parker reviewed the certification as to scope of employment de novo. Applying Vermont law, he held that Alexander was acting within the scope of his employment and substituted the United States as a defendant. McHugh does not appeal from this ruling. However, he also held that the alleged remarks were outside the scope of Wheeler's employment and that McHugh's claims against him should proceed to trial.

Wheeler appealed. Because he claims an immunity from trial as well as from liability, we have appellate jurisdiction under the so-called collateral order doctrine. Yalkut v. Gemignani, 873 F.2d 31, 34 (2d Cir.1989); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Wheeler argues that the district court erred in reviewing the certification de novo and, alternatively, that the statements he made to McHugh fell within the scope of his employment. Accordingly, he asks that the United States be substituted for him pursuant to the provisions of the Westfall Act.

2. The Westfall Act

Before the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988), it was believed that "the general rule applicable to federal employees was that they were absolutely immune from personal liability in State common law tort actions for harm that resulted from activities within the scope of their employment." H.R.Rep. No. 700, 100th Cong., 2d Sess. 2, reprinted in 1988 U.S.C.C.A.N. 5945, 5946. However, in Westfall the Court held that "absolute immunity from state-law tort actions [would be] available only where the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature." 484 U.S. at 297-98, 108 S.Ct. at 584-85. Apprehensions arose that Westfall 's modification of the standards for immunity would sharply increase the exposure to liability of federal employees, particularly with regard to lower-level employees who might have considerable difficulty establishing that they were exercising governmental discretion.

To remedy the situation, Congress passed the Westfall Act, or the Federal Employees Liability Reform and Tort Compensation Act of 1988. Pub.L. No. 100-694, 102 Stat. 4563 (amending the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1988) ("FTCA")). According to the House Report, the Act was intended "to return Federal Employees to the status they held prior to the Westfall decision." H.R.Rep. No. 700 at 4, 1988 U.S.C.C.A.N. at 5947.

We briefly summarize the Westfall Act's provisions. Section 2679(b)(1) provides that the remedy against the United States under the FTCA for tortious acts committed by employees acting within the scope of employment is exclusive of any other civil action or proceeding against the employee. ¹ Section 2679(d)(1) provides that when the Attorney General certifies that the tortious acts alleged against a federal employee were committed while the employee was acting within the scope of employment, the United States is to be substituted as defendant for the employee. ² Section 2679(d)(2) provides that, in actions pending in a state court, the United States be substituted as defendant upon certification by the Attorney General that the employee was acting within the scope of employment and that the case be removed to federal court. ³ Section 2679(d)(3) provides that, in the event the Attorney General refuses to certify that the employee was acting within the scope of employment, the employee may petition the court for judicial review of the certification decision. If the action is pending in a state court, the Attorney General may remove it to federal court. In the event that the district court finds that the employee was acting outside the scope of his employment, the case shall be remanded to the state court. ⁴ The Act contains no express provision for a tort plaintiff's challenge to the certification.

Finally, Section 2679(d)(4) provides that upon certification, the action shall proceed in the same manner as any FTCA suit but "shall be subject to the limitations and exceptions applicable to those actions." ⁵ It is this seemingly innocent provision that creates difficulties. Whereas rules regarding substitution of parties generally affect formalities rather than substantive rights, see, e.g., Fed.R.Civ.P. 25, advisory committee note (1961). ("Automatic substitution ... is distinct from and does not affect any substantive issues which may be involved in the action."). Section 2679(d)(4), in effect, states that the substituted defendant, the United States, may take advantage of numerous limitations on tort actions based on sovereign immunity that are not available to an individual defendant. These include a right to trial by the court, a two-year federal statute of limitations, the unavailability of punitive damages, and a bar to certain kinds of tort actions, including "assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." See 28 U.S.C. § 2680(h). Substitution of the United States as the defendant, therefore, not only immunizes the governmental employee but also may deprive the plaintiff of important procedural and substantive rights under state law.

3. Reviewability of the Certification

The heart of the dispute in the instant matter is whether or to what extent a certification as to...