Neal v. United States

• Decision Date: 08 February 2022
• Docket Number: Civil Action No. ELH-19-1033
• Citation: 599 F.Supp.3d 270
• Parties: Tiffany NEAL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Maryland

599 F.Supp.3d 270

Tiffany NEAL, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. ELH-19-1033

United States District Court, D. Maryland.

Signed February 8, 2022

Filed April 19, 2022

Andrew Nyombi, KNA Pearl, Silver Spring, MD, for Plaintiff.

Molissa Heather Farber, US Attorney's Office, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

Ellen L. Hollander, United States District Judge

Plaintiff Tiffany Neal, a disabled U.S. Army veteran, filed a tort suit against the United States of America (the "Government"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. ECF 1 (the "Complaint"). The suit arises from events that occurred in 2017, while Neal was a patient at the Veterans Affairs Medical Center ("VA") in Baltimore. In particular, plaintiff claims that a male employee of the VA ignored a knock-before-entering sign, entered the examination room while plaintiff was partially disrobed and undergoing a medical procedure, and thereafter made inappropriate telephone calls to her.

The Complaint contains two counts, titled as follows: "Professional Negligence – Vicarious Liability" (Count 1) and "Intrusion Upon Seclusion – Privacy Violation" (Count 2). In actuality, Count 1 contains an amalgam of claims. For example, ¶ 36 alleges that Lewis breached the standard of care for a cardiology technician, and ¶ 37 alleges negligent supervision, hiring, and training by the VA.

The Government previously moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1), asserting sovereign immunity on the ground that the employee did not act within the scope of his employment. ECF 9 (the "Motion to Dismiss"). And, under Rule 12(b)(6), it moved to dismiss Count 2, the privacy claim, for failure to state a claim. Id. By Memorandum Opinion (ECF 14) and Order (ECF 15) of November 27, 2019, I granted the Motion to Dismiss as to Count 1 with respect to Neal's claims of sexual assault and negligent hiring, training, and supervision, and granted the motion as to Count 2 to the extent Neal relied upon the claim of sexual assault. But, I denied the Motion to Dismiss as to the remainder of Neal's claims.

The Government answered (ECF 16), and the parties thereafter engaged in discovery.¹ Following the conclusion of discovery, the Government moved for summary judgment (ECF 33), accompanied by a memorandum (ECF 33-1) (collectively, the "Motion") and exhibits. ECF 33-2 to ECF 33-14. Neal opposes the Motion. ECF 38 (the "Opposition"). She has also submitted exhibits, many of which are the same as those submitted with the Motion. ECF 38-1.² The Government has replied. ECF 45 (the "Reply").

In addition, by Order of January 3, 2022 (ECF 46), the Court requested briefing from counsel as to the applicability of Lins v. United States , 847 Fed. App'x 159 (4th Cir. 2021) (per curiam), with respect to the negligent supervision claim.³ The Government's submission is at ECF 49, and Neal's submission is at ECF 50.

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion in part and deny it in part. And, I shall revive plaintiff's negligent supervision claim.

I. Factual Background

A. The Alleged Incidents

Neal, who was born in 1981, is a disabled, retired veteran of the United States Army, having served between 1999 and 2004. ECF 33-11 (Pl.’s Answer to Def.’s Interrogs.) at 3, 4; ECF 33-12 (Neal Depo.) at 3 (Tr. at 9-11). Her disabilities include Crohn's disease

, avascular necrosis, and tachycardia. Id.

On August 7, 2017, Neal went to the VA for an echocardiogram

. ECF 33-1 (exam report); ECF 33-3 at 6 (Neal's first witness statement).⁴ The procedure took place in an exam room at the VA, and was conducted by a cardiac sonographer, Leteria Poole. ECF 33-2 at 1; ECF 33-3 at 6, 10; ECF 33-12 at 4 (Tr. at 14-15). A sign on the door of the exam room asked entrants to knock before entering. ECF 33-3 at 6, 10 (Poole witness statement); ECF 33-12 at 5 (Tr. at 18).

Because of the nature of the procedure, Neal was required to remove her shirt and bra, and to instead wear a robe that left her front exposed. ECF 33-3 at 6, 10; ECF 33-12 at 4 (Tr. at 15-16); ECF 38-1 at 51 (Tr. at 10-11). Neal then laid down on a table in the room while Poole performed the procedure. ECF 33-12 at 5 (Tr. at 17); ECF 38-1 at 51 (Tr. at 10). Neal testified, and reported in her witness statement to the VA police, that her breasts were exposed during this time. ECF 33-3 at 6; ECF 33-12 at 5 (Tr. at 17-18), 6 (Tr. 21). Poole, however, has testified that she placed a towel over Neal's breasts, and that Neal's breasts were not exposed at the time. ECF 38-1 at 51 (Tr. at 10-11), 58-59 (Tr. at 41-42), 60 (Tr. at 46). A privacy curtain separated the door from the table. ECF 33-3 at 6, 10; ECF 33-12 at 5 (Tr. at 17).

During this procedure, a male VA employee, Grant Lewis, entered the room. ECF 33-3 at 6, 10, 13 (Lewis's first witness statement); ECF 33-12 at 5-7 (Tr. at 18-26). Lewis was, at the time, an EKG technician at the VA. ECF 33-4 (temporary detail letter). Neal reported and testified that Lewis did not knock before entering. ECF 33-3 at 6; ECF 33-12 at 6 (Tr. at 23). In contrast, Poole reported to the VA police, and later testified, that Lewis knocked but entered the room without waiting for a response. ECF 33-3 at 10; ECF 38-1 at 51 (Tr. at 12). Lewis has asserted that the door was partially open. ECF 33-3 at 13. After entering the room, Lewis pulled back the privacy curtain and began speaking with Poole concerning an unrelated patient issue. ECF 33-12 at 51 (Tr. at 14).

Neal was upset about Lewis's entry, and believed that he was "hovering all over" her. Id. at 5 (Tr. at 19).⁵ Neal said to Lewis: "Excuse me ... don't you see that my titty's [sic] are all out and why are you in here." ECF 33-3 at 6. According to Neal, Lewis ignored her and continued to talk with Poole, before telling Neal that he thought she was a male, and did not know a female was in the room. Id. ; ECF 33-12 at 5 (Tr. at 19). Neal asked if she looked like a man, to which Lewis responded that she did. ECF 33-3 at 6; ECF 33-12 at 5 (Tr. at 19). At this point, Poole looked "shocked" and asked Lewis to leave the room, which he did. ECF 33-3 at 6.

In Lewis's statement to the VA police, he described the incident somewhat differently. He asserted that after he heard Neal say "excuse me," he "immediately apologized." Id. at 13. When Neal persisted, he apologized again and said that because it was dark and Neal's hair was short, he thought she was a man. Id. He then closed the curtain and left. Id.

For her part, Poole reported and then testified that Neal asked Lewis why he was in the room. Lewis apologized and said he did not realize Neal was a female, which resulted in some back-and-forth before Lewis left the room. Id. at 10; ECF 38-1 at 52 (Tr. at 14-17).

After Lewis left the room, Poole completed the medical procedure. ECF 38-1 at 52 (Tr. at 16-17). Neal was upset, and discussed the incident with Poole. ECF 33-12 at 7 (Tr. at 26-27); ECF 38-1 at 52-53 (Tr. at 17-18). At Neal's request, Poole reluctantly gave Neal the name of Lewis's supervisor, Dr. Shawn Robinson. ECF 33-12 at 7 (Tr. at 26-27); ECF 38-1 at 52 (Tr. at 17). He has been the "chief of the cardiology section" since 2011 or 2012.

ECF 38-1 at 24 (Tr. at 7). Dr. Robinson testified that after this incident, he "had to call the patient [i.e. , Neal] ... to apologize and explain." ECF 38-1 at 28-29 (Tr. at 25-26). Dr. Robinson also discussed the incident with Poole, and had the "impression" that Lewis's behavior "seemed somewhat intrusive." ECF 38-1 at 27-28 (Tr. at 21-23).

Neal immediately reported the incident to VA Patient Advocate Morris Ricks, who referred the matter to the VA police. ECF 33-3 at 1; ECF 33-12 at 7 (Tr. at 27-28). VA Detective Walter Jenkins was assigned to investigate the incident. ECF 33-3 at 3. He interviewed Neal, Poole, and Lewis and submitted a report that day. Id. at 1-4. Detective Jenkins also advised Lewis "not to have any type of contact with Neal." ECF 33-1 at 3.

Neal reported to the VA police that, according to Poole, Lewis engaged in this sort of behavior "all the time," and she thought Lewis had "adult ADHD." ECF 33-12 at 5 (Tr. at 20). However, Poole testified that she "never" said that Lewis had ADHD, nor that he "always" did this. ECF 38-1 at 57 (Tr. at 35-36). Rather, she claimed to have said that some doctors would enter the room without knocking. Id.

On August 9, 2021, Lewis's supervisor, Dr. Robinson, temporarily reassigned Lewis to administrative duty pending the investigation. ECF 33-4. In his new assignment, Lewis was responsible, inter alia , for scheduling, consults, and recall reminders. Id.

On August 10, 2017, Lewis called Neal on her telephone while she was at home. ECF 33-3 at 8 (Neal's second witness statement), 17 (Lewis's second witness statement); ECF 33-12 at 8-10 (Tr. at 31-40).⁶ Lewis asserted that he obtained Neal's information, and called her as part of his normal scheduling duties, in order to schedule a "stress test" medical procedure. ECF 33-3 at 17. He said that he recognized Neal's name as the patient involved in the incident of August 7, 2017. Id. Even before Neal knew it was Lewis who was calling her, she found it "odd" to receive a phone call to schedule a stress test. ECF 33-12 at 9 (Tr. at 35). However, she later learned that a stress test "needed to be scheduled." Id.⁷

Initially, Neal did not realize that she was speaking with Lewis. ECF 13-3 at 8, 17; ECF 33-12 at 8 (Tr. at 31). At some point in the call, Lewis asked Neal if she realized with whom she was speaking. ECF 13-3 at 8, 17; ECF 33-12 at 8 (Tr. at 31). After Neal guessed that he was the Patient Advocate, Lewis said: "Nope. I am the guy." ECF 13-3 at 17; ECF 33-12 at 8 (Tr. at 31). Neal described the contact as "creepy and chilling." ECF 33-12 at 10 (Tr. at 37). In her report to the VA police, Neal stated that after Lewis identified himself, he...