Wilhite v. United States
| Decision Date | 03 August 2020 |
| Docket Number | CV 19-102-BLG-SPW-TJC |
| Parties | TAMMY WILHITE, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Montana |
Plaintiff Tammy Wilhite ("Wilhite") brings this action against the United States alleging claims for wrongful termination and intentional infliction of emotional distress following her termination from the Awe Kualawaache Care Center ("Care Center") where she worked as a registered nurse. (Doc. 1.)
Presently before the Court is the United States' Motion to Dismiss. (Doc. 5.) The motion is fully briefed and ripe for the Court's review. (Docs. 6, 13, 14.)
Having considered the parties' submissions, the Court finds the United States' Motion to Dismiss should be GRANTED in part, and DENIED in part.
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Wilhite was employed as a registered nurse at the Care Center in Crow Agency, Montana. The United States Department of Health and Human Services contracts with the Crow Tribe to run the Care Center.
While working at the Care Center, a patient told Wilhite that he had been molested while being transported. Wilhite contends the patient also disclosed the incident to other persons working in occupational therapy at the Care Center. Wilhite believes the actions of the person who allegedly molested the patient could be a felony offense under 18 U.S.C. § 2242.
Wilhite reported the incident to her immediate supervisor, Carla Catolster, who was Director of Nursing at the Care Center. Wilhite believes other mandatory reporters also reported the incident to Catolster.
Wilhite claims Catolster told other staff not to tell anyone about the incident, in order to prevent or delay staff from reporting a potential federal offense to law enforcement. An employee of the Care Center also threatened the patient with eviction if he made further reports of the incident.
When it appeared that no action was being taken, Wilhite reported theincident to law enforcement. The Montana Department of Public Health and Human Services conducted an investigation in March 2018, and the Centers for Medicare and Medicaid Services made a report substantiating the allegations of patient abuse. The report was made available to Catolster on March 21, 2018. The patient died on that same date.
As a benefit of her employment, Wilhite was provided housing in an apartment. After being told of the results of the investigation, however, Catolster informed Wilhite's landlord on March 21, 2018 that she was no longer employed by the Care Center and directed the landlord to lock Wilhite out of her apartment. The landlord did as directed, but allowed Wilhite to retrieve her personal belongings and her car. At the time, Wilhite was not informed that her employment had been terminated.
Wilhite continued to work at the Care Center until she was summoned to a board meeting on March 29, 2018. The board members present at the meeting were Paul Littlelight, Henry Pretty on Top, Lana Three Irons, and Shannon Bradley (the "Directors"). Wilhite alleges the Directors conspired to terminate her employment when she appeared for the meeting.
Wilhite was, in fact, terminated at the meeting. The stated reason was that she had a gun in her car. Wilhite alleges Defendants did not find a gun in her car; but even if she had a gun in her car, there was no policy forbidding employeesfrom having weapons in their vehicles. Wilhite asserts the real reason she was terminated was because she reported patient abuse to law enforcement. Plaintiff also alleges the board did not follow its own written personnel policies for terminating an employee.
On October 7, 2019, Wilhite filed this lawsuit. (Doc. 1). The United States argues Wilhite fails to state a claim upon which relief can be granted because her wrongful termination claim is not cognizable under the Federal Tort Claims Act, 28 U.S.C. § 2679 ("FTCA"), or alternatively falls within the discretionary function exception to the FTCA. The United States further contends Montana law does not permit a plaintiff to recover emotional damages in connection with a wrongful discharge claim.
"Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory." Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008)). The Court's standard of review under Rule 12(b)(6) is informed by Rule 8(a)(2), which requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 677-678 (2009) (quoting Fed. R. Civ. P 8(a)).
To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A plausibility determination is context specific, and courts must draw on judicial experience and common sense in evaluating a complaint. Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). A court considering a Rule 12(b)(6) motion must accept as true the allegations of the complaint and must construe those allegations in the light most favorable to the nonmoving party. Wyler Summit P'ship, 135 F.3d at 661.
The United States, as a sovereign, is immune from suit unless it has expressly waived its immunity and consented to suit. United States v. Shaw, 309 U.S. 495, 500-501 (1940); FDIC v. Meyer, 510 U.S. 471 (1994). The existence of such consent is a prerequisite for jurisdiction. United States v. Mitchell, 463 U.S. 206, 212 (1983).
In this case, Wilhite relies on the FTCA for the requisite waiver of sovereign immunity and grant of jurisdiction in this Court. The FTCA waives sovereign immunity for certain torts claims, and provides "[t]he United States shall be liable .. . in the same manner and to the same extent as a private individual under like circumstances . . . ." 28 U.S.C. § 2674. The FTCA also grants exclusive jurisdiction of such claims in federal district court, providing that "the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . , for injury . . . caused by the negligent or wrongful act or omission of any employee . . . 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. § 1346(b). The United States Supreme Court has interpreted the "law of the place," in Section 1346(b), as referring to the law of the state where the act or omission occurred. FDIC v. Meyer, 510 U.S. 471, 478 (1994).
The United States first contends wrongful termination is a statutory cause of action in Montana, and therefore, falls outside the FTCA's limited waiver of sovereign immunity for tort claims. But there is nothing in the FTCA which limits the government's waiver of sovereign immunity to common law torts, as opposed to remedies created by statute. The FTCA specifically covers "negligent or wrongful" acts or omissions, and it has been interpreted to encompass both common law and statutory torts. Waters v. United States, 812 F.Supp. 166, 169 (N.D. Cal. 1993) (). See also Plater v. United States, 359 F.Supp.3d 930, 939 (C.D. Cal. 2018); Doe v. Kelly, 2017 WL 1487626 (S.D. Cal. April 25, 2017).
The Montana Wrongful Discharge Employment Act ("WDEA") provides the exclusive remedy and procedure for actions that were formerly governed by common-law in Montana. Mont. Code Ann. §§ 39-2-902, 39-2-913; Meech v. Hillhaven W., Inc., 776 P.2d 488, 490 (Mont. 1989). Although wrongful termination is no longer a common-law tort, the WDEA provides a damages remedy for wrongful conduct in terminating employment. The WDEA requires a showing of wrongful conduct (i.e., a wrongful discharge) and permits the recovery of damages related to the harm caused by such wrongful conduct. Mont. Code Ann. §§ 39-2-904; 39-2-905. Since the United States' liability under the FTCA for its employees wrongful conduct is the same as a private person under Montana law, it would appear that claims under the WDEA would fall within the FTCA's general waiver of sovereign immunity. See e.g. Plater, 359 F.Supp.3d at 939 (); BLACKS LAW DICTIONARY (11th ed. 2019) ( ).
Further, the WDEA provides that "a discharge is wrongful [] if it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy." Mont. Code Ann. § 39-2-904(1)(A) (emphasis added). Because the FTCA applies to claims for "wrongful" acts, Wilhite's WDEA cause of action falls within its scope.
The United States next contends that even if Wilhite's wrongful termination claim is cognizable under the FTCA, it falls within the discretionary function exception to the FTCA. Wilhite counters that her discharge was not a discretionary act.
The FTCA generally waives the Government's sovereign immunity for tort claims, but provides certain exceptions, including an exception for discretionary functions. 28 U.S.C. § 2680(a). "When a claim falls within a statutory exception to the FTCA's...
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