Truman v. U.S.

Decision Date22 July 1994
Docket NumberNo. 93-1500,93-1500
Citation26 F.3d 592
Parties65 Fair Empl.Prac.Cas. (BNA) 659, 65 Empl. Prac. Dec. P 43,188, 63 USLW 2094 Donna TRUMAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Holly Crampton and Dorie Glickman, Crampton & Crampton, Wichita Falls, TX, for appellant.

Mattie Peterson Compton, Asst. U.S. Atty. and Richard H. Stephens, U.S. Atty., Fort Worth, TX, for appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, DAVIS, and DeMOSS, Circuit Judges.

GOLDBERG, Circuit Judge:

This case requires us to explore the often murky boundary between the government's sovereign immunity from suit and the availability of recovery under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346, 2671-80. In 1991, Donna Truman filed this suit against the United States, raising various tort claims under the FTCA. In her complaint, Truman described a pattern of sexual harassment visited upon her by James Whittaker, an employee of the Air Force who worked with Truman at the Sheppard Air Force Base Commissary. The district court dismissed Truman's suit, reasoning that various exceptions to the FTCA barred any recovery. Because we hold that Truman's complaint can be read to raise a claim for intentional infliction of emotional distress and because we find that such a claim is not barred by an exception to the FTCA, we reverse the judgment of the district court and remand this case for further proceedings.

I. Facts and Proceedings Below

Donna Truman worked for Oscar Mayer as a vendor-stocker at the Sheppard Air Force Base Commissary. James Whittaker, an Air Force employee who also worked at the commissary, was a meat-cutter foreman; he had the right to supervise and control vendor-stockers such as Truman. From the beginning of Truman's tenure with Oscar Mayer, Whittaker allegedly created a hostile work environment by making off-color remarks and dirty jokes and by giving Truman untoward winks and nods. According to Truman, Whittaker's conduct later escalated. Whittaker allegedly asked Truman whether she was "horny" and told her that he was "available". On another occasion, when Truman was walking behind Whittaker, he allegedly "reached behind himself in a low grabbing manner," aiming his hand towards Truman's crotch area. Whittaker also allegedly told Truman about his sexual dreams about her and asked her about her sexual proclivities. Truman charged that Whittaker was also verbally abusive. He allegedly yelled at Truman, accused her of doing things she did not do, talked about her behind her back, called her a trouble-maker, threatened her with the loss of her job, and told others that she wore excessively revealing clothing.

Truman also claimed that officials at Sheppard Air Force Base were aware of Whittaker's behavior. She stated that she repeatedly complained about Whittaker's conduct, but that Whittaker was told to discontinue his offensive behavior only once. The harassment allegedly continued, eventually prompting Truman to resign from her employment with Oscar Mayer.

After exhausting her administrative remedies, Truman filed this suit. She included in her original complaint claims brought under the FTCA. She sought compensation for her mental anguish, anxiety, embarrassment, and humiliation. She later amended her complaint and dropped all of her claims except her FTCA causes of action. Shortly before trial, the government filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. The government argued that Truman's claims were barred by several exceptions to the FTCA listed in 28 U.S.C. Sec. 2680(h). The district court granted the government's motion, dismissed the case, and entered judgment accordingly. This appeal ensued.

II. Discussion

We review the dismissal of Truman's claims on the pleadings de novo, employing the same standard as the district court. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir.1994); Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992) (reviewing dismissal of an FTCA suit). Accordingly, we accept the well-pleaded allegations in the complaint as true, and we construe those allegations in the light most favorable to the plaintiff. We will uphold the dismissal of Truman's claim " 'only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.' " Rubinstein v. Collins, 20 F.3d 160, 166 (5th Cir.1994) (citation omitted); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 742 n. 1, 96 S.Ct. 1848, 1851 n. 1, 48 L.Ed.2d 338 (1976).

As the sovereign, the United States is immune from suit unless, and only to the extent that, it has consented to be sued. F.D.I.C. v. Meyer, --- U.S. ----, ----, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994); McNeily v. United States, 6 F.3d 343, 347 (5th Cir.1993). Thus, to determine whether Truman can maintain this suit against the government, we must first decide whether one of the government's several waivers of sovereign immunity applies. If not, the government is immune from suit, and there is no subject matter jurisdiction to hear this case. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980).

Through the enactment of the FTCA, the government has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment. Specifically, the FTCA allows the government to be held liable in tort for any

negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. Sec. 1346(b). The federal district courts have exclusive jurisdiction to hear claims cognizable under section 1346(b). Id. However, the exceptions to the FTCA's waiver of sovereign immunity that appear in 28 U.S.C. Sec. 2680 limit the federal courts's jurisdiction to hear FTCA claims and, if applicable, bar a suit brought against the government. Although there is no justification for any court "to read exemptions into the [Federal Tort Claims] Act beyond those provided by Congress," Rayonier, Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957), the exceptions that do appear in the FTCA must be strictly construed in favor of the government. Atorie Air, Inc. v. Federal Aviation Admin., 942 F.2d 954, 958 (5th Cir.1991).

One of the exceptions to the FTCA's general consent-to-be-sued policy is integral to the case before us today. This exception retains the government's sovereign immunity for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. Sec. 2680(h).

To determine whether a claim is one "arising out of" any of these enumerated torts, we focus on the conduct upon which the plaintiff's claim is based. If the conduct upon which a claim is based constitutes a claim "arising out of" any one of the torts listed in section 2680(h), then the federal courts have no jurisdiction to hear that claim. United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961); Commercial Union Ins. Co. v. United States, 928 F.2d 176, 178-79 (5th Cir.1991). Even if a plaintiff styles a claim so that it is not one that is enumerated in section 2680(h), the plaintiff's claim is still barred "when the underlying governmental conduct 'essential' to the plaintiff's claim can fairly be read to 'arise out of' conduct that would establish an excepted cause of action." McNeily, 6 F.3d at 347 (citing Atorie, 942 F.2d at 958). Thus, the FTCA bars a claim based on conduct that constitutes a tort listed in section 2680(h), even though that conduct may also constitute another tort not listed in section 2680(h). Similarly, a plaintiff cannot circumvent the purpose of section 2680(h) by "framing his complaint in terms of [the government's] negligent failure to prevent the excepted harm." Id. at 347. Thus we held in Garcia v. United States, 776 F.2d 116 (5th Cir.1985), that a plaintiff could not evade the reach of section 2680(h) by raising a claim for negligence in the supervision of a military recruiter who allegedly assaulted the plaintiff. For the purposes of section 2680(h), Garcia's negligence claim arose out of an assault and battery. Id. at 118.

In contrast, if a plaintiff bases a claim on conduct that does not constitute a claim "arising out of" a tort specified in section 2680(h), then the plaintiff's suit is not barred. Even in cases in which the facts alleged in a complaint have two distinct aspects that may give rise to two similar torts, "the partial overlap between ... two tort actions does not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well. Neither the language nor history of the Act suggests that when one aspect of the Government's conduct is not actionable [because it constitutes a tort enumerated in section 2680(h) ], a claimant is barred from pursuing a distinct claim arising out of other aspects of the Government's conduct." Block v. Neal, 460 U.S. 289, 298, 103 S.Ct. 1089, 1094, 75 L.Ed.2d 67 (1983). So long as some aspect of the conduct upon which a plaintiff bases a tort claim does not constitute a tort listed in section 2680(h), the suit is not barred. Thus, in Block, the Supreme Court held that the plaintiff could maintain a cause of action against the government for negligently failing to detect defects in the construction of...

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