Santiago Ramirez v. Secretary of DOD

• Court: Court of Appeals for the First Circuit
• Decided: August 16, 1995
• Docket: 94-1394
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-1394



                          LYNETTE SANTIAGO-RAMIREZ, ET AL.,



                               Plaintiffs - Appellants,



                                          v.



                          SECRETARY OF DEPARTMENT OF DEFENSE

                                OF THE U.S.A., ET AL.,



                               Defendants - Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                          and Boyle,* Senior District Judge.
                                      _____________________



                                _____________________



               John Ward-Llamb as for appellants.
               __________________

               Isabel Mu oz-Acosta, Assistant  United States Attorney, with
               ___________________

          whom  Guillermo Gil,  United States  Attorney,  was on  brief for
                _____________

          appellees.


____________________



                                   August 16, 1995

                                 ____________________



                              
          ____________________



          *  Of the District of Rhode Island, sitting by designation.



BOYLE, Senior District Judge.   The questions presented
                    BOYLE, Senior District Judge.
                           _____________________



          on  appeal in this case  are the following:  whether this Court's



          statement,  in its prior reversal of the district court, that the



          complaint   might  be  read  to  state  a  cause  of  action  for



          intentional infliction of emotional distress constitutes the "law



          of the case"  which binds the district court and, if not, whether



          the district court's subsequent dismissal was proper.  Because we



          find that  this Court did not  previously express its view  as to



          the  law  applicable to  this case  and  that the  district court



          correctly dismissed the case, we affirm.



                                    I.  BACKGROUND
                                    I.  BACKGROUND
                                    ______________



                    We summarize  the facts only  briefly as they  are laid



          out in  detail in  our prior  opinion.   See Santiago Ram rez  v.
                                                   ___ ________________



          Secretary of the  Department of  Defense, 984 F.2d  16 (1st  Cir.
          ________________________________________



          1993).  Because this is a  review of a grant of summary judgment,



          we view  the facts in a  light most favorable to  the non-movant.



          See Coyne  v. Taber Partners,  53 F.3d 454, 457  (1st Cir. 1995).
          ___ _____     ______________



          Appellant, Santiago, worked as a  cashier at Fort Buchanan's Army



          Post  Exchange Store.   The  store's policy  prohibited employees



          from  carrying merchandise through the  front door.   On June 29,



          1990,  Santiago and a  co-employee violated this policy when they



          removed  bags  containing  store merchandise  through  the  front



          entrance.    They  placed these  bags  in the  trunk  of  the co-



          employee's  car.   Unbeknownst  to Santiago,  the bags  contained



          stolen  merchandise.    The   Safety  and  Security  Manager  and



          Santiago's  supervisor questioned her  for a total  of 45 minutes


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concerning  this breach of store policy.  Santiago told them that



          she did not know that the merchandise was stolen but was aware of



          the store's regulation  that prohibited  employees from  carrying



          merchandise through the front door.  She was later terminated for



          violating  this  regulation.    The District  Court  granted  the



          defendant's motion  to dismiss based on its finding that Santiago



          did  not  give  the defendant  adequate  notice  of  her suit  as



          required by  the Federal Tort Claims  Act.  See 28  U.S.C.   2675
                                                      ___



          (1994).  Santiago appealed.



                    We  found  that  a  letter  Santiago  had  sent  to the



          defendants  satisfied  the  statute's  notice  requirement.   See
                                                                        ___



          Santiago, 984 F.2d  at 19.  Because the  government is not immune
          ________



          from suit based on a claim of intentional infliction of emotional



          distress, we stated that the complaint "might be  read to plead a



          cause  of   action  for   intentional  infliction   of  emotional



          distress."  Id.  at 20.  We, therefore, remanded  to the District
                      ___



          Court  for a  determination  as to  whether Santiago's  complaint



          could  be read  to  state  a  cause  of  action  for  intentional



          infliction of emotional distress.  Santiago, 984 F.2d at 19.  See
                                             ________                   ___



          also, 28 U.S.C.   2680(h) (1994).
          ____



                    The district court again granted the defendant's motion



          to  dismiss, holding that under Puerto Rico law the facts alleged



          in the complaint did not state a claim for intentional infliction



          of  emotional distress and the  action was thus  barred by Puerto



          Rico's  Workmen's Accident  and Compensation  Act.   Santiago has



          again appealed.


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II.  DISCUSSION
                                   II.  DISCUSSION
                                   _______________



                    The Law of the Case
                    The Law of the Case
                    ___________________



                    Santiago asserts  that this  Court held that  her claim



          could  go  forward on  the  theory of  intentional  infliction of



          emotional distress.  She claims that the district court was bound



          by this ruling  and could  not subsequently find  that the  claim



          based on this theory was without merit.  



                    The  doctrine of  the law  of the  case directs  that a



          decision of an appellate court as to a matter of law governs that



          issue during all subsequent stages of litigation.  See Commercial
                                                             ___ __________



          Union  Insurance Co. v. Walbrook Insurance Co. Ltd., 41 F.3d 764,
          ____________________    ___________________________



          769 (1st Cir. 1994) (citing United States v. Rivera-Mart nez, 931
                                      _____________    _______________



          F.2d 148 (1st  Cir.),  cert. denied,  __ U.S. __, 112  S. Ct. 184
                                 _____ ______



          (1991)).  "When the reviewing  court, in its mandate,  prescribes



          that  a court shall proceed in accordance with the opinion of the



          reviewing court,  it incorporates its opinion  into its mandate."



          Id. at  770 (citing Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.),
          ___                 _____    _____



          cert. denied  __ U.S. __, 113 S. Ct. 125 (1992)).
          _____ ______



                    Here, the Court of Appeals has issued no such  mandate.



          Our prior opinion simply stated  that the appellant's claim might
                                                                      _____



          be read to state a cause  of action for intentional or  negligent



          infliction of emotional distress.  See Santiago-Ram rez, 984 F.2d
                                             ___ ________________



          at 18.   We remanded to the district court for a determination of



          this issue.  See  id. at 20, 21.   Moreover, this Court not  only
                       ___  ___



          refused  to  direct  the   district  court  on  this   issue,  it



          specifically stated  that "[t]he present  disposition is  without


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prejudice  of further motion disposition under Fed. R. Civ. P. 56



          once the parties have had an opportunity of addressing the issues



          consistently with this opinion."   Id.  Thus, this Court did  not
                                             ___



          determine that  Santiago's  claim for  intentional infliction  of



          emotional distress had  merit.   The district court  was free  to



          find  that the  complaint  failed to  state  a claim  under  that



          theory.



                    Dismissal for Failure to State a Claim
                    Dismissal for Failure to State a Claim
                    ______________________________________



                    We must  now consider whether the  lower court properly



          dismissed, for  a second time, Santiago's  claims for intentional



          infliction of  emotional distress.   Santiago's claim  is brought



          under the Federal Tort Claims Act  (FTCA).  See 28 U.S.C.   2671,
                                                      ___



          et seq. (1994).  The FTCA prescribes that the government can only
          __ ____



          be held liable "in accordance with the law of the place where the



          act of omission occurred."  28 U.S.C.   1346(b)(1993).  



                    Puerto  Rico has  codified  the law  dealing with  tort



          claims  by employees against  their employers in  the Puerto Rico



          Workmen's Compensation Act (PRWACA).  See P.R. Laws Ann. tit. 11,
                                                ___



            1 et seq.   When an  employer insures his  or her employees  in
              __ ___



          accordance with the PRWACA, the  compensation provided by the act



          becomes the exclusive remedy available to the plaintiff-employee.



          See P.R. Laws Ann. tit. 11,    20.  According to Puerto Rico case
          ___



          law,  however,  intentional  torts   fall  outside  the  PRWACA's



          compensatory  scheme.    See  Pacheco-Pietri v.  Commonwealth  of
                                   ___  ______________     ________________



          Puerto Rico, RE-89-524  Certified. Translation (S.Ct.P.R.  1992);
          ___________



          Odriozola  v.  Superior  Cosmetic  Dist. Corp.,  116  D.P.R.  485
          _________      _______________________________


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(1985).    Because  intentional   torts  are  excluded,  we  must



          determine whether  Santiago's complaint states a  cause of action



          for  a intentional tort; here the  tort of intentional infliction



          of emotional harm.  



                    Because  there  is  limited  authority  in  Puerto Rico



          concerning the  elements of the tort of intentional infliction of



          emotional harm, we must look to other jurisdictions.  The tort of



          intentional  infliction of emotional harm exists when "one who by



          extreme and outrageous conduct intentionally or recklessly causes



          severe emotional  distress to another."   Restatement (Second) of



          Torts   46 (1965).  See also Thorpe v. Mutual of Omaha Ins.  Co.,
                              ________ ______    _________________________



          984  F.2d. 541, 545 (1st. Cir. 1993)(conduct must be "extreme and



          outrageous,"   "beyond  all  possible  bounds  of  decency,"  and



          "utterly  intolerable in  a  civilized  community").    Moreover,



          courts  have allowed  employers  some  latitude in  investigating



          possible employee misconduct.  See Starr  v. Pearle Vision, Inc.,
                                         ___ _____     ___________________



          54 F.3d 1548, 1558  (10th Cir. 1995).   In Starr, a 1995  case in
                                                     _____



          the tenth circuit, the court  held that a plaintiff's allegations



          that her  employer yelled at her,  pushed her back down  into her



          chair, touched her arm and blocked her exit from the  room during



          questioning, did not rise to the level of outrageousness required



          to  state  a  cause  of  action  for  intentional  infliction  of



          emotional harm.



                    Here the  complaint is quite fact specific.  It alleges



          that Santiago was "questioned during around (sic) forty-five (45)



          minutes and was shown  a videotape supposedly taken at  the store


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where she worked."  Complaint at 2.  She was told that if she did



          not  cooperate with the investigation "all of this could be taken



          to  the F.B.I."   See  id.   After  the interview,  she signed  a
                            ___  ___



          statement.   See id.  These  acts as alleged are  well within the
                       ___ ___



          foreseeable consequences of her actions and fall far short of the



          outrageousness  needed   to  support   a  cause  of   action  for



          intentional  infliction  of  emotional  harm.    See  Restatement
                                                           ___



          (Second) of Torts   46 (1965).  See also Thorpe, 984 F.2d at 545;
                                          ________ ______



          Starr, 54 F.3d at 1558.
          _____



                    The  Supreme Court  of Puerto  Rico dealt  with similar



          factual circumstances in Pacheco-Pietri v. Commonwealth of Puerto
                                   ______________    ______________________



          Rico,  RE-89-524 Certified.  Translation  (S.Ct.P.R. 1992).1   In
          ____



          Pacheco-Pietri  the plaintiff was a   corrections officer who was
          ______________



          required to submit to urinalysis.   See id. at 10.   The forensic
                                              ___ ___



          office  mistakenly  mixed the  plaintiff's  sample  with that  of



          another employee which tested positive for  cocaine.  See id.  As
                                                                ___ ___



          a consequence, administrative  procedures were taken against  the



          plaintiff including the requirement  that the plaintiff submit to



          drug-addiction   treatment   at   the   Anti-Addiction   Services



          Department.    See id.   After  the  mistake was  discovered, the
                         ___ ___



          plaintiff filed  a complaint  seeking damages for  negligence and



          emotional distress.  See id. at 12.
                               ___ ___



                    The Supreme  Court of Puerto Rico  upheld that Superior



          Court's  judgment dismissing the complaint.  See  id. at 23.  The
                                                       ___  ___

                              
          ____________________



          1   We  rely on  the certified  translation of  Pacheco-Pietri v.
                                                          _________________

          Commonwealth  of  Puerto Rico  provided    by  the parties  since
          _____________________________

          publication in the official English-language reporter is pending.



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Supreme  Court, although  not  directly addressing  the issue  of



          whether this  was an  intentional tort,  found that  the incident



          constituted  a labor accident covered by Article 20 of the Puerto



          Rico Workmen's  Accident  Compensation Act  and  not  intentional



          conduct.   See id.  The court determined that the issue turned on
                     ___ ___



          whether the accident occurred  in the course of employment.   See
                                                                        ___



          id. at 19.  It stated that "when the employee suffers an accident
          ___



          in the performance of  a requirement imposed by the  employer for



          the continuity of the employment, the same shall be considered as



          having occurred  in the  course of employment."   Id.   The court
                                                            ___



          found that because the drug testing and subsequent treatment were



          part   of  the   requirements   for  the   plaintiff's  continued



          employment, the  accident and  injuries  stemming therefrom  were



          solely compensable under the PRWACA and thus any civil action was



          barred.  See id. at 23.
                   ___ ___



                    Here, the Fort Buchanan's  Army Post Exchange Store had



          a policy,  similar to the drug-testing  policy in Pacheco-Pietri,
                                                            ______________



          prohibiting  employees from  using  the front  door to  transport



          merchandise.  When Santiago was discovered to have violated  this



          policy,   she was  questioned  by her  superiors as  part of  her



          continued  employment.     There   is  no  allegation   that  the



          questioning  was abusive,  extreme or  outrageously intimidating.



          Plaintiff's  experience is  not  unlike that  experienced by  the



          plaintiff  in  Pacheco-Pietri.    Santiago  claims,  without  any
                         ______________



          suggestion either that the questioning was  abusive or extreme in



          light  of the circumstances,   that the actions  of her employers


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constituted an intentional infliction  of emotional harm. Because



          this questioning  was a necessary  incident of employment  for an



          employee  who had  broken the  rules, under  Puerto Rican  law it



          cannot be said to be intentionally tortious.   See Pacheco-Pietri
                                                         ___ ______________



          v.  Commonwealth  of  Puerto  Rico,  RE-89-524  Cert. Translation
              ______________________________



          (S.Ct.P.R. 1992), and Odriozola v. Superior Cosmetic Dist. Corp.,
                                _________    _____________________________



          116 D.P.R. 485 (1985).   III.  CONCLUSION
                                   III.  CONCLUSION
                                   ________________



                    The   district   court's  conclusion   that  Santiago's



          complaint does  not state a  claim for intentional  infliction of



          emotional harm is not in error.  We affirm.


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