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Rushton v. United States

United States District Court, S.D. Georgia, Augusta Division

June 18, 2018




         Before the Court is Defendant United States of America's ("United States") motion to dismiss Plaintiff's amended complaint.[1] (Doc. 10.) For the reasons set forth below, Defendant's motion is GRANTED.

         I. BACKGROUND[2]

         "Plaintiff is/was a patient at the Charlie Norwood VA Center" in Augusta, Georgia. (Am. Compl., Doc. 5, ¶¶ 13, 15.) Plaintiff was treated by Dr. Adrien Nelson, a psychiatrist employed by the United States Department of Veterans Affairs at the Charlie Norwood VA Center. (Id. ¶¶ 14-15.)” On or about August 12, 2014, Plaintiff was sexually harassed by . . . [Dr. Nelson, ] who was phoning her for dates and following her around in the grocery store.'' (Id. ¶ 29.) Plaintiff asserts that the United States "has vicarious liability for the acts" - and was negligent in the supervision and retention - of Dr. Nelson. (Id. ¶¶ 18-20.)

         On November 3, 2014, Plaintiff filed an administrative tort claim with the Department of Veterans Affairs regarding Dr. Nelson's conduct. (Id. ¶ 9.) On November 13, 2015, the Department of Veterans Affairs denied Plaintiff's administrative tort claim. (Id. ¶¶ 10; see also Doc. 9-2 (denial letter dated November 13, 2015).) On April 20, 2016, Plaintiff moved for reconsideration of the denial of her administrative tort claim. (Id. ¶ 11.) On June 16, 2017, the Department of Veterans Affairs confirmed its denial of Plaintiff's administrative tort claim. (Id. ¶ 12; see also Doc. 5-1 (denial letter dated June 16, 2017).)

         On December 11, 2017, Plaintiff filed her initial complaint in this Court, in which she named David J. Shulkin, then-Secretary of the Department of Veterans Affairs, as the only defendant. (See Doc. 1.) On February 9, 2018, Secretary Shulkin moved to dismiss Plaintiff's initial complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) & (6). (Doc. 4.) On February 20, 2018, Plaintiff filed her amended complaint, in which she named the United States as the only defendant. (Doc. 5.) On March 1, 2018, the United States moved to dismiss Plaintiff's amended complaint pursuant to Rule 12(b)(1) & (6). (Doc. 10.)


         "Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction can be asserted on either facial or factual grounds." Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citations omitted). "Facial challenges to subject matter jurisdiction are based solely on the allegations in the complaint[; w]hen considering such challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint's allegations as true." Id. (citations omitted). "However, where a defendant raises a factual attack on subject matter jurisdiction, the district court may consider extrinsic evidence such as deposition testimony and affidavits." Id. (citations omitted). Here, the United States' assertion that this Court lacks subject-matter jurisdiction over this action is based solely on the allegations in Plaintiff's amended complaint and thus its jurisdictional challenge is facial. Thus, for the purposes of this Order, the Court has accepted as true all facts alleged in the amended complaint and construed all reasonable inferences in the light most favorable to Plaintiff. See Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). Nevertheless, Plaintiff, as the party invoking the Court's jurisdiction, "bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction.' See McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).


         “[T]he United States, as a sovereign entity, is immune from suit unless it consents to be sued." Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015) (citations omitted). “Through the enactment of the [Federal Tort Claims Act ("FTCA")], the federal government has, as a general matter, waived its immunity from tort suits based on state law tort claims." Id. (citations omitted); see also id. at 1323 ("The FTCA was enacted to provide redress to injured individuals for ordinary torts recognized by state law but committed by federal employees." (citations omitted)). "But in offering its consent to be sued, the United States has the power to condition a waiver of its immunity as broadly or narrowly as it wishes, and according to whatever terms it chooses to impose." Id. at 1321-22 (citations omitted). "That being so, a court must strictly observe the limitations and conditions upon which the [United States] consents to be sued and cannot imply exceptions not present within the terms of the waiver." Id. at 1322 (citations omitted). "If there is no specific waiver of sovereign immunity as to a particular claim filed against the [United States], the court lacks subject matter jurisdiction over the suit." Id. (citations omitted). Where an exception exists that "neutralize[s] what would otherwise be a waiver of immunity, a court will lack subject matter jurisdiction over the action." Id. ("These exceptions must be strictly construed in favor of the United States . . . ." (internal quotations and citations omitted)).

         "Any plaintiff seeking to sue the United States under the FTCA must satisfy two initial statutory burdens to establish jurisdiction, " namely identifying: (1) "an explicit statutory grant of subject matter jurisdiction, which in the case of the FTCA is 28 U.S.C. § 1346(b)(1);" and (2) "a statute that waives [the United States'] sovereign immunity[, which in the case of the FTCA] is provided in chapter 171 of Title 28, which chapter includes §§ 2671-2680." Id. (citations omitted). Notably, 28 U.S.C. § 1346(b)(1) only provides federal courts with jurisdiction over torts committed by federal employees "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." See 28 U.S.C. § 1346(b)(1). "State law, therefore, governs the question of whether the United States has waived its sovereign immunity against liability for the acts complained of by the plaintiff." Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990) (citations omitted); see also Stevens v. Battelle Mem'l Inst., 488 F.3d 896, 899 n.3 (11th Cir. 2007) ("Liability in an FTCA action is determined in accordance with the law of the place where the government's act or omission occurred . . . ." (citations omitted)). Because all relevant tortious acts - and tortious injuries resulting therefrom - are alleged to have occurred in Georgia, the Court looks to Georgia law to determine the United States' liability. See Besada v. U.S. Citizenship & Immigration Servs., 645 Fed.Appx. 879, 880 (11th Cir. 2016) ("To state a claim under the FTCA, a plaintiff must allege a violation of state law by an employee of the federal government acting within the scope of his employment." (citing Zelaya, 781 F.3d at 1323-24)).

         A. Vicarious Liability/Respondeat Superior

         In Georgia, “[a]n employer is liable for negligent or intentional torts committed by an employee only if the torts were committed in furtherance of, and within the scope of, the employer's business." Hendrix v. Snow, 170 Fed.Appx. 68, 82 (11th Cir. 2006) (citing Piedmont Hosp., Inc. v. Palladino, 580 S.E.2d 215, 217 (Ga. 2003)); see also Flohr v. Mackovjak, 84 F.3d 386, 390 (11th Cir. 1996) ("The question of whether an employee's conduct was within the scope of his employment is governed by the law of the state where the incident occurred." (internal quotations and citations omitted)). "Stated another way, if the employee was authorized to accomplish the purpose in pursuance of which the tort was committed, the employer is liable." Chorey, Taylor & Feil, P.C. v. Clark, 539 S.E.2d 139, 140 (Ga. 2000) (citations omitted). Conversely, "an employer cannot be held liable [in Georgia] on the basis of respondeat superior if the employee's acts (1) were committed for purely personal reasons associated solely with the employee's own gratification, and (2) were entirely disconnected from the scope of the employee's employment." Hendrix, 170 Fed.Appx. at 82 (citing Palladino, 580 S.E.2d at 217); see also Palladino, 580 S.E.2d at 217 ("Under Georgia law, if a servant steps aside from his master's business to do an act entirely disconnected from it, and injury to another results from the act, the servant may be liable, but the master is not liable." (internal quotations and citations omitted)).

         Here, Plaintiff seeks to hold the United States vicariously liable for the actions of Dr. Nelson in "sexually harass[ing]" Plaintiff by "phoning her for dates and following her around in the grocery store" on or about August 12, 2014. (Am. Compl. ¶ 29.) Yet "it is well settled under Georgia law that an employer is not responsible for the sexual misconduct of an employee" because "these types of torts, being purely personal in nature, are unrelated to the employee's duties and, therefore, are outside the scope of employment because they were not in furtherance of the master's business."[3]Alpharetta First United Methodist Church v. Stewart, 472 S.E.2d 532, 535-36 (Ga.Ct.App. 1996) (citations omitted). Further, Plaintiff has alleged no facts that would indicate that Dr. Nelson's alleged tortious conduct was committed in furtherance - or within the scope - of his employment. See Hendrix, 170 Fed.Appx. at 82; Palladino, 580 S.E.2d at 217. Nor has she alleged that Defendant authorized Dr. Nelson to accomplish the purpose in pursuance of which he committed his alleged tortious acts or otherwise authorized him to engage in identical behavior. See Doe v. Fulton-DeKalb Hosp. Auth., 628 F.3d 1325, 1334-35 (11th Cir. 2010) p[W]hen the allegedly tortious behavior is identical to behavior authorized by the employer - i.e., observing women in the restroom using a hidden camera installed by the employer - a question of fact remains whether the employee is acting within the scope of his employment. But because [the employer] did not mandate the behavior complained of and [the employee] abused his authority to pursue his own sexual agenda, we conclude that his conduct was analogous to that of ...

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