Nevarez v. U.S.
| Decision Date | 12 March 1997 |
| Docket Number | No. EP-95-CA-377-DB.,EP-95-CA-377-DB. |
| Citation | 957 F.Supp. 884 |
| Parties | Irene NEVAREZ v. UNITED STATES of America. |
| Court | U.S. District Court — Western District of Texas |
Antonio Silva, El Paso, TX, for plaintiff.
Kurt Bohn, Special Assistant United States Attorney, El Paso, TX, for defendant.
On this day, the Court considered Defendant's Motion To Dismiss For Lack Of Subject Matter Jurisdiction, filed on February 4, 1997, in the above-captioned cause. Plaintiff filed her Response Defendant's Motion To Dismiss For Lack Of Subject Matter Jurisdiction on February 18, 1997. On March 3, 1997, Defendant submitted a letter brief in reply to Plaintiff's Response to Defendant's Motion to Dismiss. After careful consideration of the pleadings and testimony from two evidentiary hearings,1 the Court is of the opinion that the matter be resolved as set forth below.
On July 28, 1995, Plaintiff, Irene Nevarez ("Nevarez" or "Plaintiff") filed suit in state court against her co-workers, Selina Lee, Rebecca Morales, and Albertina Luna, alleging that they individually and/or collectively made defamatory statements about her. On September 1, 1995, the United States certified that these employees were acting within the course and scope of their employment at the time the statements were made. The United States then gave notice that it was substituting itself for the aforementioned individuals. Upon substitution of the individual Defendants by the United States, the state court lost jurisdiction over the cause. Therefore, on September 1, 1995, the Defendant, United States, gave its Notice of Removal to the United States District Court for the Western District of Texas, El Paso Division.
Defendant subsequently filed a Motion to Dismiss for failure to state a claim upon which relief can be granted on September 8, 1995, asserting that, because the United States was now the Defendant, the case would proceed under the Federal Tort Claims Act which does not apply to claims arising out of libel or slander. 28 U.S.C. § 2680(h). By way of response, Plaintiff challenged the U.S. Attorney's certification of the course and scope of employment as to the individual state court Defendants. On November 2, 1995, a hearing was held to determine the scope of employment issue. This Court entered an Order on November 6, 1995, rejecting the certification and substituting the three individual Defendants for the United States.2
On January 24, 1997, on remand from the Fifth Circuit, this Court held another hearing to review the certification of scope of employment as to the individual Defendants.3 Following the hearing, Defendant filed the instant Motion To Dismiss For Lack Of Subject Matter Jurisdiction asserting that such claims are preempted by the Civil Service Reform Act of 1978 ("CSRA" or the "Act").4 Defendant additionally asserts that, pursuant to FED.R.CIV.P. 12(b)(6), Plaintiff's pleadings fail to state any claim upon which relief could be granted. Plaintiff responded to the Motion asserting that the individual Defendants were not acting within the scope of their employment when they made the alleged defamatory statements and that the CSRA does not cover the alleged misconduct perpetrated in this case. Plaintiff provided the Court with numerous affidavits of interested parties, as exhibits to their Response.
Plaintiff broadly asserts in her Original Petition that, from February 1994 to March 1995, the three individually named Defendants engaged in a course of action of intentional defamation.5 Specifically, Plaintiff alleges that the Defendants made statements which accused her of "having a sexual affair with her work supervisor, Pete Medina," and that such statements were "heard by the residents of the City of El Paso ..." After a lengthy and tiresome study of testimony obtained through the hearings and evidence provided as exhibits to the various motions, the Court has been able to discern the following sordid facts about the case.6
Nevarez was originally employed at the Department of Public Works and Logistics ("DPWL") at Fort Bliss but was a victim of a reduction in force ("RIF") within the department in June 1992. As a result, Nevarez went to visit Pete Medina ("Medina") at the Equal Employment Opportunity ("EEO") Office on Fort Bliss to inquire about filing a complaint against the Directorate of Resource Management ("DRM") and Civilian Personnel Office ("CPO"). Medina formulated a solution to Nevarez's problem by having DRM fund Nevarez's position for one year while Medina trained Nevarez for a position within the EEO office. As such, Nevarez began employment training for the position of Complaint Manager — GS-9/11, within the EEO office in September of 1992.
At about the same time, Selina Lee filed an EEO complaint based on race and national origin discrimination for non-selection for promotion from GS-9 to GS-11, and was subsequently placed in the EEO office as a temporary employee in November 1992. In February of 1993, the results of the investigation into Ms. Lee's complaint revealed no discrimination and Ms. Lee was returned to her original duty station. In June of 1993, a negotiated settlement agreement was reached whereby Ms. Lee was transferred to the EEO office as an EEO Assistant — GS-7. It was during this period that there was a vacancy in the office for an EEO Specialist — GS-9/11. According to Ms. Lee, Medina provided Nevarez, and only Nevarez, with the opportunity to train for this GS-9/11 position even though Nevarez lacked EEO counseling experience and/or background. It was Nevarez's promotion and permanent placement into the Complaint Manager position which fueled the rumors of an affair between Medina and Nevarez.
In July 1994, the Inspector General ("IG") was directed to conduct an investigation to determine the facts and circumstances surrounding allegations of misconduct on the part of a Department of the Army civilian official assigned to Fort Bliss. The IG investigation continued through October 1994. Some of the allegations investigated by the IG which are pertinent to the case include the following:
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(b) That Mr. Medina and Ms. Irene C. Nevarez had an inappropriate relationship for personal gain and for promotion in violation of Executive Order # 12674, April 12, 1989, as amended by Executive Order # 12731, 19 Oct. 90, Section 101, paragraphs a. & m., Interim Change 4, AR 600-20, Army Command Policy, and Commanding General's Policy B-10, Subject: Sexual Harassment, dated 15 Oct. 92.
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(d) That Mr. Medina exercised unfair promotion practices by promoting Ms. Nevarez to GS-11 instead of Ms. Lee in violation of USAADACENFB Reg 690-9, Merit Promotion and Placement Plan.
During the January 24, 1997, hearing on the scope of employment issue, Plaintiff offered the testimony of several witnesses.7 The testimony of the witnesses established the following:
1) All interested parties and witnesses were federal employees at the time of the alleged misconduct.
2) The alleged misconduct occurred on federal property at Fort Bliss.8
3) The alleged misconduct occurred during the work week of Monday through Friday and during the normal duty hours of 7:30 a.m. through 4:30 p.m.
4) The alleged misconduct of Rebecca Morales related to the processing of Nevarez's promotion.
5) The alleged misconduct of Albertina Luna occurred when she told Dorothy Bloechl that Nevarez and Medina were supposedly having an affair.
6) The alleged misconduct of Selina Lee occurred when she made comments about Nevarez to Nevarez.
In addition, the Defendant resubmitted the affidavits of the individual Defendants previously offered at the November 2, 1995, hearing. Specifically, the affidavit of Albertina Luna details that all the comments that Luna made about Nevarez were made either during her participation as a witness in the IG's investigation and the EEO investigation; during a discussion with Ms. Sambrano, the new EEO officer, conducted in her official capacity as one supervisor to another, or; to Ms. Bloechl, after she made repeated inquires into what "problems" existed in the EEO office. In her affidavit, Luna further specifies that during the investigations and during the "briefing" of Ms. Sambrano, Luna was Nevarez's supervisor.
Pursuant to Title 28 U.S.C. § 1331, a district court has original jurisdiction over a civil action which arises under the Constitution, laws, or treaties of the United States. However, should a defendant believe that jurisdiction does not properly lie with the district court, that defendant may raise such a defense and seek a dismissal of the action pursuant to FED.R.CIV.P. 12(b)(1), at any time.
The factual determinations decisive of a motion to dismiss for lack of jurisdiction are within the court's command and there exists no right to trial on such issues. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). Before making a jurisdictional decision, however, the district court must look to the way the complaint is drafted to see if it is written so as to claim a right to recover under the Constitution and laws of the United States. Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 775-76, 90 L.Ed. 939 (1946). The court may base its decision on the undisputed facts in the record, the plaintiff's allegations, and its own resolution of disputed facts. Williamson, 645 F.2d at 416. As a general rule, the motion should be granted where the federal claim is clearly immaterial or insubstantial. Id.
A Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted may be filed by either party pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The purpose of such a motion under Rule 12(b)(6) is to test the legal sufficiency of the statement of the claim for relief, not the facts that support it. The...
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...court to place the burden of proof on the issue of substitution on the government rather than the plaintiff. Nevarez v. United States, 957 F.Supp. 884, 887 n. 3 (W.D.Tex.1997). We join with our sister circuits in placing the burden of proof on the plaintiff to refute the certification of sc......
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Bush v. Jones, No. 1:01CV275-D-D (N.D. Miss.)
...relief may be granted on the ground that under FTCA, no action may lie against United States for defamation); Nevarez v. United States, 957 F. Supp. 884, 893 (W.D. Tex. 1997) (noting that under the FTCA the United States is immune from libel and slander suits under 28 U.S.C. § 2860(h) and d......