The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Pending before the court is Paul O'Neill, the Internal Revenue Service ("IRS"), and Joel E. Helke's (collectively, "defendants") motion to dismiss Counts V and VI of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for reconsideration of the court's order denying their motion to substitute the United States for Mr. Helke. For the following reasons, the court denies the motion to dismiss and grants the motion for reconsideration.
Plaintiff Linda Boyd is a trial attorney in the Field Services division of the Financial Institutions and Products branch of the IRS, where she has been employed since July 6, 1998. At that time, her immediate supervisor was Mr. Helke, who held the title of branch chief. Ms. Boyd alleges that, from July of 1998 through June of 1999, Mr. Helke repeatedly subjected her to unwanted physical contacts of a sexual nature because of her gender, as well as offensive sexually-suggestive and gender-based comments. Specifically, Ms. Boyd avers that Mr. Helke backed her up to a wall or filing cabinet and touched her shoulders on three separate occasions, backed her up to a wall or filing cabinet without touching her on four other occasions, and blocked the doors of a Washington Metropolitan Area Transit Authority ("Metro") train at the Federal Triangle station. See Amended Complaint ¶¶ 18-19, 21-23, 25, 27, 64. Ms. Boyd also avers that Mr. Helke yelled at her twice, used the term "doing it" in a sexually-provocative manner, used double entendre statements (i.e., "can't get it up today" when attempting to open a computer program), and scratched his groin area on a few occasions in front of her and others. See id. ¶¶ 21, 26, 42, 48.
In her lawsuit, Ms. Boyd asserts claims for sexual and gender-based harassment against Mr. O'Neill, in his official capacity as Secretary of the Treasury, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I and II), and claims for intentional infliction of emotional distress and assault against Mr. Helke (Counts V and VI).*fn1 On December 31, 2001, the defendants filed a motion to substitute the United States for Mr. Helke and then to dismiss the tort claims against the United States. The defendants argued that the United States should be substituted for Mr. Helke under the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA"), Pub. L. No. 100-694, 102 Stat. 4563 (1988), because he was acting within the scope of his employment at the time of the alleged incidents out of which the tort claims arose. Upon substitution, the defendants continued, Ms. Boyd's tort claims should be dismissed (against the United States) under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The court denied this motion on September 28, 2002.
The defendants filed the instant motion on October 11, 2002, asking the court to dismiss Ms. Boyd's tort claims against Mr. Helke on different grounds or, alternatively, to reconsider its September 28th order. The defendants now argue that Title VII bars Ms. Boyd's tort claims because that statute is the exclusive remedy for claims of discrimination against federal officials in the federal workplace. They argue that the conduct underlying these tort claims is the same as that underlying her harassment and retaliation claims under Title VII. According to the defendants, the two sets of claims are "essentially co-extensive." Defendants' Motion to Dismiss in Part or, in the Alternative, Motion for Reconsideration at 5. Ms. Boyd contends that, although Title VII may preclude a federal employee from bringing claims under other federal legislation, it does not prevent her from bringing tort claims under the common law of the District of Columbia. The defendants reply that, because Title VII has been amended to include compensatory damages in addition to equitable relief, the rationale for allowing common law tort claims based on sexual or gender-based harassment has been eliminated.
In support of their motion for reconsideration of the September 28th order, the defendants assert that Ms. Boyd failed to sustain her burden of proving that Mr. Helke was not acting within the scope of his employment when the alleged incidents in question took place.*fn2 They maintain that Ms. Boyd has not produced facts sufficient to rebut the certification of the Attorney General that Mr. Helke was acting within the scope of his employment. Ms. Boyd counters that Mr. Helke's alleged physical contacts with her -- the primary basis for her tort claims -- were not authorized by the Treasury Department and, therefore, were beyond the scope of his employment.
A. Motion to Dismiss Counts V and VI
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 42, 45-46 (1957). The court must accept as true all of the plaintiff's well-pled factual allegations and draw all reasonable inferences in favor of the plaintiff; however, the court does not need to accept as true the plaintiff's legal conclusions. See Alexis v. District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999).
The defendants argue that Counts V and VI should be dismissed because Title VII preempts other remedies, including relief sought under common law tort theories. They ground their argument primarily in the Supreme Court's decision in Brown v. Gen. Serv. Admin., 425 U.S. 820 (1976), which held that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." Id. at 835. Brown, however, does not preclude a federal employee from bringing common law claims of intentional infliction of emotional distress and assault against her supervisor based on conduct that also happens to be discriminatory. As persuasively decided by Judge Norma Holloway Johnson of this court, Brown is inapplicable to common law tort claims against a federal employee in his individual capacity because
Brown 's discussion of the exclusivity of remedies for federal employees is limited to the exclusivity of federal remedies for employment discrimination. A review of the nature of the plaintiff's allegations in Brown demonstrates that the plaintiff did not attempt to redress his discrimination claims through a state tort claim for damages directed at federal officials in their individual capacities. Epps v. Ripley, No. 81-588, 1982 WL 514, at *1 (D.D.C. Mar. 11, 1982) (emphasis in original).
While the Supreme Court in Brown prevented the plaintiff from suing the General Services Administration for employment discrimination under section 1981, it did not address the issue of whether a federal employee may sue both the government under Title VII and an individual under common law tort theories based on the same facts. Assault, for example, is actionable apart from Title VII because it is beyond the meaning of discrimination. See Brock v. United States, 64 F.3d 1421, 1424 (9th Cir. 1995). Such a highly personal violation does not fall within Title VII's domain, even if arising from the same facts as a claim of discrimination. As the Ninth Circuit remarked in Brock, "[r]ape can be a form of sexual discrimination, but we cannot say to its victims that it is nothing more." Id. at 1423 (emphasis in original). When, as here, the victim of a discriminatory act alleges a harm apart from discrimination, Title VII does not preclude her from suing under a common law tort theory to remedy that distinct injury. See id.
To the extent that a federal employee's claim of intentional infliction of emotional distress is based on alleged assaultive conduct, rather than the alleged harassment, it is also not precluded by Title VII. Any emotional injuries arising from the alleged harassment are subsumed within Title VII, but a plaintiff may pursue her intentional infliction of emotional distress claim for injuries resulting from alleged tortious behavior. See Stewart v. Thomas, 538 F. Supp. 891, 895-97 (D.D.C. 1982) (The plaintiff based her claims on "two distinct and independent rights: her ...