Vizcarrondo-González v. Perdue
| Decision Date | 26 October 2020 |
| Docket Number | CIVIL NO. 16-2461 (PAD) |
| Parties | ANA VIZCARRONDO-GONZÁLEZ, Plaintiff, v. SONNY PERDUE, SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE (USDA), et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Plaintiff Ana Vizcarrondo-González sued the U.S. Department of Agriculture, the Secretary of Agriculture, Thomas Vilsack, and Eliud Rivera, a co-worker, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the U.S. Constitution and Puerto Rico law, including Puerto Rico's general tort statute, Article 1802 of the Civil Code, P.R. Laws Ann. tit. 31 § 5141. See, Docket No. 1.1 All claims except the tort claim against Mr. Rivera were dismissed in previous stages of the litigation. See, Docket Nos. 20, 28, 63. For the reasons explained below, the remaining claim is DISMISSED.
On April 16, 2020, the Government presented a scope of employment certification with respect to the tort claim, and asked to substitute the United States for Mr. Rivera (Docket No. 65). Ms. Vizcarrondo challenged the certification (Docket No. 66). The Government and Mr. Riverareplied to the challenge (Docket Nos. 67 and 68). The court authorized limited discovery as to the certification (Docket No. 77), and on October 8, 2020, held an evidentiary hearing (Docket Nos. 81 and 85). In light of the evidence presented at the hearing, the court concludes that Mr. Rivera was acting within the scope of his employment at the time of the incident on which the tort claim is based. As such, he is substituted by the United States.2 But given that Ms. Vizcarrondo complains of assault and battery, the Government has not consented to be sued for intentional torts except in limited instances not present here, and Ms. Vizcarrondo failed to exhaust administrative remedies under the Federal Tort Claims Act ("FTCA"), the tort claim must be dismissed.
Ms. Vizcarrondo alleges that on January 14, 2016, while she was waiting to start her shift in Terminal A of the Luis Muñoz Marín International Airport in Puerto Rico, Mr. Rivera approached her and snatched his jacket from the chair she was sitting on, inappropriately touching her back, low back, and buttocks (Docket No. 1, ¶ 59). Ms. Vizcarrondo and Mr. Rivera are employees of the United States Department of Agriculture's Animal and Plant Health Inspection Service ("APHIS"), assigned to the International Airport (Docket No. 63, pp. 3-4).3 On the day of the incident, Ms. Vizcarrondo was a GS-7 Plant Protection and Quarantine Officer ("PPQO"), whereas Mr. Rivera was a GS-5 Plant Protection and Quarantine Technician ("PPQT") (DocketNo. 82, p. 4, ¶¶ 3-1, 3-2). Both of them had reported to work at the International Airport on that date (Docket No. 82, p. 4, ¶ 3-4; Transcript October 8, 2020 ["TR"], p. 43).4
Ms. Vizcarrondo was assigned to the X-Ray Machine in Terminal A (Docket No. 82, p. 4, ¶ 3-5; TR, pp. 12, 13, 46. Her shift started at 0600 hours (TR, p. 12). Mr. Rivera worked overtime from 0400 to 0600 hours at Checkpoint # 5 (Docket No. 82, p. 4, ¶ 6; TR, p. 60). After the overtime assignment ended, he was listed to begin his regular work schedule (Docket No. 82, p. 4, ¶ 7; TR, p. 60). At the conclusion of the overtime, Mr. Rivera took two bags of contraband to the X-Ray Machine in Terminal A of the Airport, to discard it in the designated trashcan (Docket No. 82, p. 5, ¶ 8; TR, pp. 13-14, 25).
Mr. Rivera dropped off the contraband in the designated waste basket, greeted two co-workers that were in the same area;5 walked toward the chair Ms. Vizcarrondo was sitting on; snatched his jacket from the chair;6 kept walking to a table in the front; grabbed a thermos; verified the daily guide log in order to ascertain where he had to report for his regular work schedule; and left for his next post (TR, pp. 14-15, 25, 26, 45-46, 48-49).7 As part of the terms and conditionsof employment, APHIS allows its employees to use official government jackets as part of their uniform (Docket No. 82, p. 5, ¶ 3-10). Employees must keep all of their equipment and uniforms with them at all times in all stations they go to (TR, p. 51). The only place where Mr. Rivera could have discarded the contraband was the station Ms. Vizcarrondo was assigned to work on that day. Id. at pp. 25-26.
The FTCA waives the United States' sovereign immunity with respect to certain, but not all, types of tort actions. See, Limone v. United States, 579 F.3d 79, 88 (1st Cir. 2009)(discussing topic). Similarly, it immunizes federal employees for all liability for any negligent or wrongful acts or other common law tort claims committed while acting within the scope of their employment at the time of the incident out of which the tort claim arose. Id.
The Attorney General "can certify that a federal employee named as a defendant in a civil case was acting within the scope of his office or employment at the time of the incident that serves as the basis for a tort claim against the employee." Lyons v. Brown, 158 F.3d 605, 606 (1st Cir. 1998)(internal citations omitted). The Attorney General has delegated the authority to make scope of employment certifications to the United States Attorneys with respect to civil actions brought against federal employees in their respective districts. Id. at 607 n.1.
In this case, the United States Attorney for the District of Puerto Rico certified that Mr. Rivera was acting within the scope of his employment (Docket No. 65). That certification was "conclusive unless challenged." Gutiérrez de Martínez v. Drug Enforcement Administration, 111 F.3d 1148, 1153 (4th Cir. 1997). As mentioned earlier, it was challenged. When the certification is challenged, it serves as prima facie evidence and shifts to the plaintiff the burden to show, by a preponderance of the evidence, that the defendant federal employee was acting outside the scope of his employment. Id. In assessing whether the plaintiff has rebutted the prima facie case, the district court does not defer to the Attorney General's certification, but instead reviews the question de novo. Id. at 1154. In this manner, it must "determine independently" whether the employee was acting within the scope of his federal employment when the allegedly wrongful act occurred. Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996).8
Whether or not a particular act is within the scope of employment "is a matter to be determined in accordance with the law of the place" in which the tortious act allegedly occurred. Borrego v. United States, 790 F.2d 5, 6 (1st Cir. 1986). In this case, that place is Puerto Rico. As elsewhere, the scope-of-employment issue in Puerto Rico is normally resolved not to give immunity to the employee, but to impose liability on the employer under the respondeat superior doctrine. Id. at 7. All the same, the inquiry focuses on whether: (1) the employee's acts furthered a desire to serve and benefit his employer's interest; (2) the act is reasonably related to the scope of the employee's employment; and (3) the employee has acted out of purely personal motives. Id.
Mr. Rivera was serving the interests of his employer when he was amid shifts, moving between work areas in the Luis Muñoz Marín International Airport, in order to discard contraband, review a daily guide log to find out the post to which he had to report to next, and take his officialjacket with him. These actions took place in the workplace, during working hours, were directly related to Mr. Rivera's employment as PPQT for APHIS, and advanced the employer's interests, for the agency's mission is furthered when its employees report to work on time (TR, pp. 26, 85, 86), review the daily log to make sure they know where they are assigned to work (id. at pp. 87), discard contraband in the assigned containers (id. at pp. 27, 86), and are appropriately dressed and duly uniformed in the workplace. Id.9 Furtherance of the mission results in a direct benefit to taxpayers and in protection of the public interest.
Ms. Vizcarrondo argues that Mr. Rivera was driven by purely personal motives and "had it against" her because at one point he was suspended from work after she complained against him (TR, p. 97).10 A "partially selfish motivation does not, by itself, render an employee's conduct outside the scope of employment." Villeza v. United States, 2006 WL 278618, *3 (D.Haw. Jan. 5, 2006). Animosity or ill will for a plaintiff, standing alone, is insufficient to deny substitution. See, Maron v. United States, 126 F.3d 317, 325 (4th Cir. 1997)(applying formulation). Those sentiments must be looked at "in context, rather than in a vacuum." Id. They will not take theconduct outside the employee's scope of employment unless there is no link between the employee's act and the employer's legitimate interest. See, Attallah v. United States, 955 F.2d 776, 781-782 (1st Cir. 1992)("...[T]here must be some link between the intentional ... act committed by the employee, and the legitimate interests of the employer").
On that understanding, the record shows a direct link connecting Mr. Rivera's acts with APHIS's interest. Compare McIntyre ex rel. v. United States, 545 F.3d 27, 29-30, 39-40 (1st Cir. 2008)(FBI agent was acting within the scope of his employment when he leaked the identity of an informant to two other informants, both of whom were considered particularly valuable sources of information for the FBI's investigation of the Boston branch of La Cosa Nostra, and notwithstanding the fact that the leak resulted in the brutal murder of the first informant by the other two informants and their associates; albeit the agent was partially motivated by greed and the desire to maintain his friendship with the murderer-informants, who had given him in excess of $200,000 over a number of years, he was motivated, at least in part, by a desire to promote the FBI's goal...
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