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VANOVER v. HANTMAN

November 19, 1999

ROBERT 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.



The opinion of the court was delivered by: Flannery, District Judge.

MEMORANDUM-OPINION

I. Introduction

On September 27, 1997, plaintiff was discharged from his employment by order Employees 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 manchites 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.*fn1 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 plaintiffs 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 plaintiffs allegations in his Amended Complaint and documents referenced therein. Only the facts relevant to plaintiffs 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 plaintiffs "first-line" supervisor. The "first-line" supervisor is apparently the one who supervises an employee most directly. Defendant Carl Smith ("Smith") is plaintiffs second-line supervisor. Defendant Lynne Theiss ("Theiss") was previously the Director of the Senate Restaurants and plaintiffs 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 plaintiffs "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 plaintiffs employment be terminated for continuing performance problems. On January 23, 1997, Smith issued a "Proposal to Terminate" plaintiffs 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.*fn2 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, plaintiffs counsel was directed to present his "summation" by written document.

Following receipt of plaintiffs 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. ¶ Subsequently, Miley issued findings of fact and a recommendation that the plaintiff be discharged.*fn3 letter dated September 18, 1997, Hantman adopted Miley's recommendation and directed that plaintiffs employment be terminated effective September 27, 1997.

III. Analysis

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

In connection with plaintiffs 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 96 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.*fn4 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 been certified to be acting in the scope of their employment.

The Attorney General, pursuant to 28 U.S.C. § 510 (1994), has delegated certification authority to the United States Attorneys. 28 C.F.R. § 15.3. In this case, the U.S. Attorney has certified that the defendants sued in their individual capacity were acting within the scope of their employment at the time of the alleged incidents. The statutory requirements for substitution are therefore satisfied.

Nevertheless, defendants' motion must be denied in part. Although substitution is appropriate insofar as plaintiffs claim seeks damages, it is inappropriate insofar as plaintiffs claim seeks injunctive or declaratory relief. Section 2679(b)(1) specifies what sort of claims may not be brought against individual employees, and states in relevant part that

  [t]he remedy against the United States . . . is
  exclusive of any other civil action or proceeding for
  money damages by reason of the same subject matter
  against the employee whose act or omission gave rise
  to the claim or against the estate of such employee.
  Any other civil

  action or proceeding for money damages arising out of
  or relating to the same subject matter against the
  employee or the employee's estate is precluded
  with-out regard to when the act or omission occurred.

28 U.S.C. § 2679(b)(1) (1994) (emphasis added). This langnage, providing for preclusion of actions "for money damages" logically implies that an action for injunctive or declaratory relief would not be precluded. It is true that the substitution provision, § 2679(d)(i), does not itself contain this limiting language. It only refers to substitution for any action arising out of "the claim." 28 U.S.C. § 2679(d)(1). However, "the claim" is best understood in reference to the limiting language in the earlier provision. But see Simpkins v. Shalala, 999 F. Supp. at 119 (holding that, even where plaintiff sought injunctive and declaratory relief, "[a] plaintiffs sole remedy for action taken by employees acting within the scope of their duties is against the government, even if the government would not be liable due to sovereign immunity."). Accordingly, defendants' motion to substitute is granted as to the claim for damages and denied as to the injunctive and declaratory relief.

C. Motion To Dismiss — Standard of Review

Dismissal pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim is proper only when it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. See Tele-Communications of Key West, Inc. v. U.S., 757 F.2d 1330, 1334 (D.C.Cir. 1985). The court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. See Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996): A motion to dismiss to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) is reviewed' under a similar standard, where the motion challenges the sufficiency of the allegations of subject matter jurisdiction. See Pitney Bowes Inc. v. U.S. Postal Service, 27 F. Supp.2d 15, 19 (D.D.C. 1998). The burden of proving jurisdiction is upon the plaintiff. Id.

When reviewing a motion under Fed.R.Civ.P. 12(b)(6), if "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . ." Fed.R.Civ.P. 12(b). However, where a document is referred to in the complaint and is central to plaintiffs claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment. Greenberg v. The Life Insurance Company of Va., 177 F.3d 507, 514 (6th Cir. 1999). The Court finds that Chapter 752 of the Personnel Manual and the various letters and materials produced in the course of plaintiffs discharge ...


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