Vanover v. Hantman

Decision Date19 November 1999
Docket NumberCivil Action No. 97-2572(TAF).
Citation77 F.Supp.2d 91
PartiesRobert VANOVER, Plaintiff, v. Alan HANTMAN, Office of the Architect of the Capitol; Patrick Taylor, Chef, Senate Restaurants, Office of the Architect of the Capitol; Carl Smith; Lynne Theiss, Executive Officer, Office of the Architect of the Capitol; Robert Miley, Superintendent, House Office Buildings, Office of the Architect of the Capitol; Charles Tyler, General Counsel, Office of the Architect of the Capitol; Peggy Lambert Tyler, Office of Chief Employment Counsel, Office of the Architect of the Capitol; Kevin Mulshine, Chief Employment Counsel, Office of the Architect of the Capitol; and Hector Suarez, Director of the Human Resources Management Division, Defendants.
CourtU.S. District Court — District of Columbia

Jeffrey Howard Leib, Washington, DC, for Robert Vanover.

Halsey B. Frank, Michael C. Johnson, U.S. Attorney's Office, Washington, DC, for Alan Hantman.

Michael C. Johnson, U.S. Attorney's Office, Washington, DC, for Charles Tyler, Peggy Lambert Tyler, Kevin Mulshine, Hector Suarez, Patrick Taylor, Lynne Theiss, Robert Miley.


FLANNERY, District Judge.

I. Introduction

On September 27, 1997, plaintiff was discharged from his employment by order of defendant Alan Hantman, the Architect of the Capitol ("Hantman" or "AC"). He now claims, inter alia, that the discharge deprived him of property without due process of law in violation of the Fifth Amendment to the U.S. Constitution, U.S. Const. Amend. V, as well as the provisions of the Architect of the Capitol Human Resources Act (hereinafter "HRA"), 40 U.S.C. § 166b-7 (West Supp.1999), Chapter 752 of the AC Personnel Manual, and the procedural mandates of 5 U.S.C. §§ 7501 et seq. (1994), alleged to be incorporated by reference into the AC's personnel procedures. He also claims that the defendants tortiously interfered with his employment in violation of the law of the District of Columbia.1 In addition to Hantman, plaintiff sues eight present and former co-employees who were involved in some fashion in his termination proceeding. Each is sued solely in his or her individual capacity. Plaintiff seeks damages, as well as reinstatement and declaratory relief.

Pending before the Court are two motions by the defendants. The first is a motion to substitute the United States as defendant to plaintiff's tort claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq. (1994). Defendants also move to dismiss the tort and due process claims pursuant to Fed R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons discussed below, the motion to substitute is granted in part and denied in part and the motion to dismiss the tort and due process claims is granted.

II. Background

The facts are taken from plaintiff's allegations in his Amended Complaint and documents referenced therein. Only the facts relevant to plaintiff's tort and due process claims are mentioned.

From January 22, 1992 to September 27, 1997, plaintiff was employed as a custodial cleaner in the United States Senate Restaurants. The Senate Restaurants are under the administration of the Office of the Architect of the Capitol ("OAC"), see 2 U.S.C. § 1301(5) (1994), which is also responsible generally for the care and management of Capitol buildings and grounds. 40 U.S.C. § 163 (1982). Defendant Patrick Taylor ("Taylor") is the Chef of the Senate Restaurant and plaintiff's "first-line" supervisor. The "first-line" supervisor is apparently the one who supervises an employee most directly. Defendant Carl Smith ("Smith") is plaintiff's second-line supervisor. Defendant Lynne Theiss ("Theiss") was previously the Director of the Senate Restaurants and plaintiff's third-line supervisor.

Between 1994 and 1996, plaintiff was subjected to a series of disciplinary actions which culminated in the termination of his employment. The first alleged disciplinary action occurred on September 21, 1994, when Smith gave plaintiff a warning "to take immediate action to correct ... work habits which, in some instances, were creating serious accident hazards to other members of the kitchen staff." Am. Compl. ¶ 43. On September 13, 1995, Smith issued plaintiff a "Proposal of Official Reprimand" for "failure" on August 8, 1995 "to perform assigned duties in a safe and satisfactory manner, and for unacceptable conduct and behavior, in violation of the ethical conduct standards contained in Section 5.1 of the `Standards of Conduct of the Architect of the Capitol.'" Am.Compl. ¶ 44. On November 6, 1995, Smith instituted another "Official Reprimand" "for ... failure to perform assigned duties in a safe and satisfactory manner, and for unacceptable conduct and behavior." Am. Compl. ¶ 45. On April 24, 1996, Taylor issued a "Proposal to Suspend" based on plaintiff's "failure to perform assigned duties in a safe and satisfactory manner; and unacceptable conduct and behavior." Am.Compl. ¶ 46. On July 19 and 22, 1996, respectively, defendant Theiss and plaintiff executed an Alternate Discipline Agreement providing for a "paper suspension."

On or around November 7, 1996, Taylor recommended in an internal memorandum that plaintiff's employment be terminated for continuing performance problems. On January 23, 1997, Smith issued a "Proposal to Terminate" plaintiff's employment based on a number of incidents which Taylor had noted in a private log he had maintained since July 23, 1996. The letter was sent to plaintiff as notice of the proposed action. Pl.App.M.

On February 28, 1997, Theiss issued a letter concurring with the proposed action (again sent to plaintiff) and the action was referred to a hearing officer, defendant Robert Miley ("Miley"), for a formal hearing.2 Pl.App.N. On July 1, 1997, the hearing was conducted. John Clifford, a private attorney, represented the OAC. Plaintiff was also represented by counsel. By the end of the day, Clifford had presented his evidence, which consisted largely of testimony from Taylor, relying heavily on his log. After Clifford gave his oral summation, plaintiff's counsel was directed to present his "summation" by written document.

Following receipt of plaintiff's written summation, Miley made inquiries to defendant Kevin Mulshine ("Mulshine"), the Chief Employment Counsel, apparently regarding how to address the issues plaintiff had raised in his summation. Mulshine responded in a letter dated July 28, 1997, instructing Miley, in part, that

a hearing officer's responsibility is to address whether the proposed termination is supported by the information produced at the hearing. The rule of common sense prevails; rules of evidence and burdens of proof that must be followed by a judicial body do not restrict the hearing officer's conduct.

Pl. Appendix O; Am.Compl. ¶ 99. Subsequently, Miley issued findings of fact and a recommendation that the plaintiff be discharged.3 By letter dated September 18, 1997, Hantman adopted Miley's recommendation and directed that plaintiff's employment be terminated effective September 27, 1997.

III. Analysis

A. Motion to Substitute United States As Defendant In Tort Claim

In connection with plaintiff's sixth claim, alleging tortious interference with employment in violation of Section 921 of Title 11 of the District of Columbia Code, defendants have moved pursuant to 28 U.S.C. § 2679 (1994), a provision of the FTCA, to have the United States substituted in the place of the eight defendants sued in their individual capacities, arguing that such substitution is mandatory because defendants were acting within the scope of their employment. Defendants do not move for substitution of Hantman, who is sued only in his official capacity.

The FTCA provides a general waiver to the United States' sovereign immunity to tort liability, with certain specified exceptions. 28 U.S.C. § 2680 (1994) (listing exceptions). In 1988, Congress amended the FTCA with passage of the Federal Employees Liability Reform and Tort Compensation Act ("Liability Reform Act"). As amended by the Liability Reform Act, section 2679 of the FTCA provides that an action against the United States is the exclusive remedy for any damages claim arising out of the "negligent or wrongful act[s] or omission[s]" of federal employees done while acting within the scope of their employment. 28 U.S.C. § 2679(b)(1) (1994). Section 2679 thus gives federal employees absolute immunity from tort liability for acts done in the scope of their employment. Simpkins v. Shalala, 999 F.Supp. 106, 119 (D.D.C. 1998).

Section 2679 also provides a specific procedure to implement its immunity mandate. When a federal employee is sued in tort, the Attorney General must certify whether the employee was acting within the scope of his or her employment at the time of the allegedly tortious act. 28 U.S.C. § 2679(d)(1). Upon certification, the United States is substituted as the sole defendant and any tort claim against the individual arising out of the same "subject matter" is precluded. Id.4 Substitution of the United States is mandatory even if the tort claim is one of those for which the government has not waived its sovereign immunity. See U.S. v. Smith, 499 U.S. 160, 165, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991).

It is established that a tortious interference with employment claim falls within the broad set of state law tort claims subject to the substitution provision of the FTCA. See Simpkins, 999 F.Supp. at 119 (applying substitution to claim for interference with contractual, economic, and business relations); Claasen v. Brown, No. Civ. A. 94-1018, 1996 WL 79490 (D.D.C. Feb.16, 1996) (applying substitution to claim for interference with employment contract); Aviles v. Lutz, 887 F.2d 1046, 1048 (10th Cir.1989) (applying § 2679 to claim for tortious interference with employment rights). Thus, the claim is subject to substitution where employees have...

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