Kearney v. United States of America, No. 3:2017cv08145 - Document 22 (D. Ariz. 2018)
Court Description: ORDER granting in part and denying in part 16 Motion to Dismiss. The Court grants the motion concerning Count Two and dismisses it from the Complaint. The Court otherwise denies the motion. Signed by Judge G Murray Snow on 6/29/18. (DXD)
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Kearney v. United States of America 1 Doc. 22 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michelle Kearney, Plaintiff, 10 11 ORDER v. 12 No. CV-17-08145-PCT-GMS United States of America, 13 Defendant. 14 15 16 17 Pending before the Court is Defendant United States of America’s Motion to Dismiss. (Doc. 16). The Court grants the motion in part and denies the motion in part. BACKGROUND 18 Plaintiff Michelle Kearney previously worked for the United States Department of 19 the Interior in the Grand Canyon National Park (“GRCA”). (Doc. 1 ¶ 5). From 2007 to 20 2012, she held various positions with the Grand Canyon River District, where she was the 21 only female employee. (Doc. 1 ¶¶ 5–6). Ms. Kearney reported several instances of 22 sexual harassment during her employment. One co-worker watched her change clothes 23 in October 2010. (Doc. 1 ¶ 18). In April 2011, the same co-worker repeatedly invited 24 her to bathe with him in the river, attempted to be naked in a boat with her, and exposed 25 his genitals to her when she refused his invitations. (Doc. 1 ¶¶ 16–17). Ms. Kearney told 26 supervisors about the misconduct, but no action was taken to resolve the problem. (Doc. 27 1 ¶¶ 19–20). To escape the harassment, she resigned from her permanent position at the 28 Grand Canyon River District in September 2012 and accepted work as an intermittent Dockets.Justia.com 1 biological technician in the fisheries department. (Doc. 1 ¶¶ 21–23). 2 On June 6, 2013, Ms. Kearney documented the harassment in a twenty-nine page 3 letter, which she sent to the GRCA Chief Ranger on June 6, 2013. (Doc. 1 ¶ 15). In 4 October 2013, while Ms. Kearney was working as a biological technician, she learned 5 that employees of the GRCA Trail Crew (another group with a history of sexual 6 misconduct) knew about her letter to the Chief Ranger. (Doc. 1 ¶¶ 23–24). Ms. Kearney 7 told her supervisor that the Trail Crew knew about her letter, and her supervisor reported 8 the incident to GRCA Deputy Superintendent Diane Chalfant. (Doc. 1 ¶ 27). GRCA 9 leadership failed to address either the sexual harassment outlined in Ms. Kearney’s letter 10 or the letter’s disclosure to other employees. (Doc. 1 ¶ 28). 11 In September 2014, Ms. Kearny joined thirteen former and current employees of 12 the GRCA River District in sending a letter to the Secretary of the Interior. The letter 13 included Ms. Kearney’s twenty-nine page description of harassment as an attachment. 14 (Doc. 1 ¶¶ 56–57). In response to this letter, the Office of Inspector General conducted 15 an investigation of misconduct at GRCA and published a subsequent report on January 16 12, 2016. 17 Superintendent Diane Chalfant had disclosed Ms. Kearney’s personal contact information 18 to the alleged harassers. (Doc. 1 ¶ 30). (Doc. 1 ¶ 59). Ms. Kearney learned from this report that Deputy 19 The release of Ms. Kearney’s personal contact information to her perpetrators has 20 caused her “to live in fear of retaliation.” (Doc. 1 ¶ 93). After the Department of the 21 Interior rejected her claim for relief in January 2017, (doc. 1 ¶ 101), Ms. Kearney filed 22 this Complaint on July 19, 2017. (Doc. 1). The Complaint asserts jurisdiction pursuant 23 to the Federal Tort Claims Act (“FTCA”) which makes the United States liable for torts 24 as if it were a private entity. 28 U.S.C. § 2674. Ms. Kearney’s complaint includes four 25 counts, all brought under Arizona state law. Count One alleges a claim for negligence 26 due to Diane Chalfant’s disclosure of Ms. Kearney’s personal information. (Doc. 1 at 27 17). Count Two alleges a claim for negligent hiring, retention, or supervision. (Doc. 1 at 28 19). It generally alleges that various GRCA managers and supervisors failed to properly -2- 1 oversee complaints about sexual harassment. (Doc. 1 at 19–20). Count Three alleges a 2 claim for invasion of privacy due to Diane Chalfant’s disclosure of Ms. Kearney’s 3 personal information. (Doc. 1 at 20). Count Four alleges a claim of intentional infliction 4 of emotional distress due to Diane Chalfant’s disclosure of Ms. Kearney’s personal 5 information. (Doc. 1 at 22). The United States moved to dismiss the Complaint for lack 6 of jurisdiction due to preemption and for failure to state a claim due to the statute of 7 limitations. (Doc. 16). 8 9 DISCUSSION I. Legal Standard 10 A. 11 Federal Rules of Civil Procedure 12(b)(1) allows a party to move to dismiss a 12 complaint for lack of subject matter jurisdiction. “The party asserting jurisdiction has the 13 burden of proving all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 14 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 15 178, 189 (1936)). Federal courts “possess only that power authorized by Constitution 16 and statute,” and therefore “[i]t is to be presumed that a cause lies outside this limited 17 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In 18 effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. See id.1 19 II. Rule 12(b)(1) Analysis 20 A. 21 The Defendant moves to dismiss Count Two for negligent hiring, retention, and 22 supervision because it is preempted by the Civil Service Reform Act (“CSRA”). (Doc. 23 16 at 6).2 The CSRA is a “remedial scheme through which federal employees can Civil Service Reform Act 24 25 26 27 28 1 The Defendants also moved to dismiss part of the Complaint under Rule 12(b)(6) for failure to state a claim. This argument is based on the argument that the FTCA’s twoyear statute of limitations bars Count Two for negligent hiring, retention, and supervision. Because the Court dismisses Count Two on jurisdictional grounds, it does not address Rule 12(b)(6) or the statute of limitations argument. 2 The Defendants originally moved to dismiss Counts One, Three, and Four as preempted by the CSRA, but it withdrew this argument on reply. (Doc. 21 at 1, n.1). -3- 1 challenge their supervisors’ ‘prohibited personnel practices.’” Orsay v. U.S. Dep’t of 2 Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (quoting 5 U.S.C. § 2302). The CSRA 3 preempts the FTCA because otherwise permitting FTCA claims to supplant the CSRA 4 “would defeat Congress’ purpose of creating ‘a single system of procedures and 5 remedies, subject to judicial review.’” Mangano v. U.S., 529 F.3d 1243, 1246 (9th Cir. 6 2008) (quoting Rivera v. U.S., 924 F.2d 948, 951 (9th Cir. 1991)). “If the challenged 7 conduct ‘falls within the scope of the CSRA’s ‘prohibited personnel practices,’ then the 8 CSRA’s administrative procedures are [the employee’s] only remedy.’” Id. (quoting 9 Orsay, 289 F.3d at 1128). 10 The CSRA applies only to “prohibited personnel practices” by government 11 employees with authority to make personnel decisions. 5 U.S.C. § 2302. The statutory 12 definition of a personnel action includes, among others, “other disciplinary or corrective 13 action[s]” and “any other significant change in duties, responsibilities, or working 14 conditions.” 5 U.S.C. § 2302(a)(2)(A). The definition of “personnel action” is broad. 15 Mangano, 529 F.3d at1247 (citation omitted). “There are limits to what qualifies as a 16 ‘personnel action,’ but the instances are well outside anything that could reasonably be 17 described as a ‘personnel action.’” Id. (citations omitted). The prohibited personnel 18 practices that fall under the CSRA include discrimination, nepotism, and taking any 19 personnel action against an employee because “of the exercise of any appeal, complaint, 20 or grievance right granted by any law, rule, or regulation.” 5 U.S.C. § 2302(b). 21 Count Two in Ms. Kearney’s Complaint is primarily based on inappropriate 22 employment practices. In short, it alleges “evidence of a long-term pattern of sexual 23 harassment and hostile work environment in the Grand Canyon River District” that “were 24 not properly investigated or reported to HR and EEO.” (Doc. 1 ¶¶ 113–14). It further 25 alleges that GRCA “failed to properly supervise its employees in charge of responding to 26 complaints of sexual harassment” and requests damages based on “Grand Canyon’s 27 negligent retention and supervision of its many supervisory employees.” (Doc. 1 ¶¶ 116– 28 19). -4- 1 Because of the alleged failure to supervise, Ms. Kearney alleges that she was 2 subject to work in a discriminatory, hostile working environment. (Doc. 1 ¶ 113). She 3 left her position at the Grand Canyon River District and refused to accept a permanent 4 position with the Fisheries Department because of the hostile working environment and 5 GRCA’s failure to properly supervise its staff. (Doc. 1 ¶¶ 21–23, 26). Ms. Kearney’s 6 allegations of negligent hiring, retention, and supervision fall under the CSRA definition 7 of discriminatory “disciplinary or corrective actions” that resulted in a “significant 8 change in . . . working conditions.” 5 U.S.C. § 2302(a)(2)(A); 5 U.S.C. § 2302(b). 9 Therefore, the CSRA preempts Count Two. 10 B. 11 The Defendant moves to dismiss all four counts because they are precluded by 12 Title VII. (Doc. 16 at 10). Title VII “provides the exclusive, pre-emptive remedy for 13 federal employees seeking to redress employment discrimination.” Sommatino v. U.S., 14 255 F.3d 704, 711 (9th Cir. 2001) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 15 829–32 (1976)). Claims based on the FTCA may supplement Title VII claims “if the 16 conduct alleged is a highly personal violation beyond the meaning of workplace 17 discrimination.” Id. (citing Brock v. U.S., 64 F.3d 1421, 1423–24 (9th Cir. 1995)). Title VII 18 The Ninth Circuit has found that rape, sexual assault, and stalking are highly 19 personal violations beyond the meaning of workplace discrimination. See, e.g., Brock v. 20 United States, 64 F.3d 1421, 1422–24 (9th Cir. 1995) (finding a highly personal violation 21 based on plaintiff’s allegation that her supervisor raped her); Arnold v. United States, 816 22 F.2d 1306, 1308–12 (9th Cir. 1987) (finding a highly personal violation based on 23 plaintiff’s allegation that her supervisor “blocked the door preventing her from leaving” 24 her office and then held her “close to his body, kissing and fondling her”); Otto v. 25 Heckler, 781 F.2d 754, 758 (9th Cir. 1986) (finding a highly personal violation based on 26 plaintiff’s allegation that her supervisor stalked and defamed her and that “the resulting 27 mental distress caused her to suffer a miscarriage”). 28 Other conduct that is less directed at the plaintiff does not support an FTCA claim. -5- 1 Sommatino v. U.S., 255 F.3d 704, 712 (9th Cir. 2001). In Sommatino, the plaintiff 2 alleged that she “felt intimidated and fearful of physical violence” by a co-worker who 3 “made sexually offensive remarks to her and other female employees[,] . . . brushed his 4 body against [her] arms, legs, and hips . . . [and] often used loud, offensive, and vulgar 5 language in the office.” Sommatino, 255 F.3d at 705–06. When the plaintiff complained 6 about the co-worker’s conduct to her supervisors, she “was assigned to share an office 7 cubicle with [the co-worker,]” which the plaintiff believed was retaliation for her 8 complaints against him. Id. at 706. The Ninth Circuit held that these allegations did not 9 justify an FTCA claim because the allegations of harm were not specifically directed at 10 the plaintiff, and the co-worker’s conduct, “while highly offensive, is not of the order of 11 magnitude of the personal violation of rape in Brock, the forced sexual assaults 12 in Arnold (forced kissing, fondling, and blocking the door), and the following and phone 13 calling at home in Otto.” Id. at 712. 14 Counts One, Three, and Four in Ms. Kearney’s complaint all focus on Diane 15 Chalfant’s release of Ms. Kearney’s personal contact information to her alleged 16 harassers. (Doc. 1 at 17–23). Under these counts, Ms. Kearney does not complain about 17 generalized harm that she felt as a female in an uncomfortable and unsafe job, nor is her 18 complaint limited to how she feels at the GRCA work environment. 19 complains about the individualized harm that she specifically experienced when her 20 personal contact information, including her physical address, was released to her alleged 21 perpetrators. For example, she complains that she “is in constant fear for her safety” 22 because “Ms. Chalfant disclosed [her] identity and contact information to people that Ms. 23 Kearney complained about.” (Doc. 1 ¶ 108). Because of the disclosure, the perpetrators 24 “know where to find her if they want to retaliate against her.” (Doc. 1 ¶ 138). When Ms. 25 Kearney “learned of Ms. Chalfant’s egregious disclosure,” she “felt helpless and 26 violated” and “broke down several times.” (Doc. 1 ¶ 128). The invasion of privacy and 27 release of personal, private contact information to sexual harassers is conduct “beyond 28 the meaning of workplace discrimination.” -6- Instead, she Sommatino, 255 F.3d at 711 (citation 1 omitted). Accordingly, the Court denies Defendant’s motion to dismiss Counts One, 2 Three, and Four. 3 4 CONCLUSION For the reasons described above, Ms. Kearney’s claims surrounding employment 5 discrimination in Count Two are preempted by the CSRA. 6 surrounding Diane Chalfant’s release of her private contact information to alleged sexual 7 perpetrators are not preempted by Title VII. Ms. Kearney’s claims 8 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Doc. 16) is 9 granted in part and denied in part. The Court grants the motion concerning Count Two 10 11 and dismisses it from the Complaint. The Court otherwise denies the motion. Dated this 29th day of June, 2018. 12 13 14 15 Honorable G. Murray Snow United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-
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