Taite v . Morin CV-06-428-JM 04/18/07 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brenda K. Taite
v. Civil N o . 06-cv-428-JM Opinion N o . 2007 NH 058 Paula Morin
O R D E R
This is a tort action that arose out of a deteriorating work
relationship between the parties. Plaintiff Brenda K. Taite
(“Taite”) used to work at the United States Department of
Veterans Affairs, Veterans Health Administration and Medical
Center (“VA”) in White River Junction, Vermont, where she shared
an office with defendant, Paula Morin (“Morin”). On the
afternoon of September 2 6 , 2006, while Taite was sitting at her
desk at work, Morin struck Taite in the face with an office
calendar she was delivering. Based on that incident, Taite filed
an action against Morin in Small Claims Court in Claremont, New
Hampshire.
On November 1 7 , 2006, the United States Attorney for the
District of New Hampshire (“US Attorney” or “US Attorney’s
Office”) removed the action to this court, arguing the charges arose under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80
(“FTCA”), because the incident involved a federal employee acting
within the scope of her employment while at work. See Document
no. 1. The US Attorney has moved to substitute the United States
for Morin as the defendant and to dismiss the action, based on
the exclusive remedy for federal employees injured during the
course of employment set forth in the Federal Employees
Compensation Act, 5 U.S.C. §§ 8101, etc. (“FECA”). See Document
nos. 5 and 6. Taite challenges the US Attorney’s certification
that Morin was acting within the scope of her employment and
seeks to have the matter remanded back to state court. See
Document nos. 9 and 1 6 . To resolve the factual dispute regarding
whether Morin was acting within the scope of her employment when
the incident occurred, an evidentiary hearing was held on March
8 , 2007. See Gutiérrez de Martinez v . Lamagno, 515 U.S. 4 1 7 , 434
(1995) (allowing district courts to review challenged scope of
employment certifications). As explained more fully below, I
find that Morin was not acting within the scope of her employment
when she struck Taite in the face with the calendar; therefore, I
deny the US Attorney’s motions to substitute it as the defendant
and to dismiss this action (document nos. 5 and 6 ) , grant Taite’s
2 motion to remand (document n o . 9 ) and order the clerk’s office to
close this case.
Discussion
1. Background
In April 2006, Taite was hired as a claims assistant in the
VA’s Business Office, Patient Services Section. Taite shared an
office with Morin, who occasionally assisted Taite with her work.
Although the women worked together, their relationship was
somewhat difficult. Once in June 2006, Taite complained about
Morin to a supervisor; however, the two resolved the problem
themselves and nothing further came of i t . Taite testified that
during her tenure at the VA, she and Morin had become friends and
frequently had discussed their personal lives. By contrast,
Morin testified that after the June incident she harbored ill
feelings towards Taite and was only professionally cordial to
her. Both women agreed, however, that by September 2006 their
relationship had strained, to the point where Morin basically had
stopped talking to Taite.
The configuration of the office the two women shared is
important to the resolution of this dispute. The office was
3 split down the middle by a row of filing cabinets that ran about
three quarters of the length of the room, to create two distinct
office spaces within the one room. The two halves of the room
were connected where the filing cabinets ended, in the front area
of the room nearest the hallway. Along that near wall were two
doors, which lead from the hallway into each half of the office.
Standing in a doorway facing into the office, Taite’s half was on
the left and Morin’s half was on the right side of the room.
Each woman had a desk and two chairs on her half of the office.
Morin had an L-shaped desk that sat along the side wall, then
turned out into the room. Taite’s desk faced out towards the
wall with the doors to the hallway. Taite had a computer monitor
in the middle of her desk and, next to i t , an “in-box,” that
consisted of five boxes stacked on top of one another, in the
left front corner of her desk, nearest the filing cabinets and
Morin’s half of the office.
On the afternoon of September 2 6 , 2006, Taite was sitting at
her desk concentrating on a claim she was processing. She
glanced up when Morin walked through the office door on Morin’s
side of the room and noticed something in Morin’s hand, but
resumed working. In her peripheral vision, Taite saw Morin
4 approach her desk and suddenly throw the paper she was holding at
Taite. The paper was a calendar, that flew across Taite’s desk,
hit the bridge of her nose and smacked her glasses into her left
eye. Startled, Taite jumped up and asked Morin why she had done
that. As that reaction happened, Morin simply turned and walked
over to her desk, where she sat down and began laughing with
another VA employee, Jeffrey Bennett (“Bennett”) who had been
waiting for Morin by her desk. Morin did not answer Taite.
Taite then called out to another employee whom she believed
had witnessed the incident, to confirm what had just happened.
She also asked Bennett whether Morin had just thrown the calendar
at Taite, and he agreed. Taite immediately contacted several VA
supervisors, including the VA police to report the incident. The
police responded quickly, and took separate statements from Taite
and Morin about the incident.
Both Morin and Bennett testified at the hearing and denied
Taite’s accusations. Morin explained that, among other things,
she is responsible for ordering and stocking supplies at work.
On the day in question she was delivering calendars for the new
fiscal year, which begins every October 1 . Although Morin
corroborated Taite’s story that she walked into the office
5 through the door on her side of the room and approached Taite’s
desk to deliver the calendar, Morin insisted that she carefully
placed it into the top “in-box” of the five-story unit Taite had
in the corner of her desk. Morin also testified that after
putting the calendar there, she returned to her side of the
office to assist Bennett who had been waiting for her. Morin
explicitly denied having tossed the calendar either into Taite’s
in-box unit or onto her desk, and insisted that she carefully set
it into the top in-box. Morin, who is barely 5 feet tall, stated
she was about an arm’s length away from the desk and reached
straight out to place the calendar in the box. Morin also denied
laughing at Taite’s reaction, but admitted that she and Bennett
exchanged looks of disbelief and confusion when Taite began
accusing Morin of having thrown the calendar at her.
Bennett testified next and had difficulty remembering many
details. He appeared flushed and nervous. Bennett initially
could not recall whether he had confirmed that Morin had thrown
the calendar, but then, after a considerable delay, changed his
testimony to deny ever having agreed with Taite, or having
laughed at her, about the incident. Bennett’s description of the
office layout was inconsistent with both Taite’s and Morin’s
6 testimony, and his memory of how the incident occurred also was
undermined by the testimony of both Morin and Taite. He said
Morin had entered the office through Taite’s door and had placed
the calendar somewhere on Taite’s desk, but was not sure where
and stated he had not been paying attention to what was happening
on that half of the office. He recalled clearly, however, how
upset Taite was. He described having been surprised by the
entire incident. When Taite began telephoning supervisors, he
and Morin left the office. Finally, Bennett testified that he
was not aware of any ill-will or hard feelings between Morin and
Taite.
2. Analysis
a. Scope of Employment Certification
The critical issue in this dispute is whether Morin’s
conduct fell within the scope of her employment, as the defense
asserts, or constituted an unexpected assault and battery, as
plaintiff alleges. The law clearly allows the US Attorney’s
office to remove the matter from state court to this court and to
substitute the United States as the defendant, based on a
certified representation that Morin was acting within the scope
of her employment when the complained of incident occurred. See
7 28 U.S.C. § 2679(d)(2) (requiring removal and substitution of the
United States as defendant when employee defendant was acting
within the scope of employment). I f , as a federal employee,
Morin acted within the scope of her employment, then the law
requires the claim be construed against the government, and the
remedies made available under the FTCA preclude any further
relief Taite might otherwise be able to obtain against Morin
personally. See 28 U.S.C. § 2679(b)(1); see also Aversa v .
United States, 99 F.3d 1200, 1207-08 (1st Cir. 1996) (explaining
how the amended FTCA made employees absolutely immune from suit
for torts committed within the scope of employment). This
court’s jurisdiction over the matter depends on Morin having
acted within the scope of her employment. See 28 U.S.C. §
1346(b)(1) (granting federal district courts exclusive
jurisdiction of civil actions on claims against the United States
for money damages for personal injury caused by the negligent or
wrongful act of a government employee).
The FTCA allows injured parties to recover from the federal
government for torts federal employees commit against them. The
law holds the United States liable for “tort claims, in the same
manner and to the same extent as a private individual under like
8 circumstances,” id. § 2674, “for injury or loss . . . caused by
the negligent or wrongful act or omission of any employee of the
agency while acting within the scope of his office or
employment.” Id. § 2672. Under Vermont law, which applies here
because the incident occurred in Vermont, see Aversa, 99 F.3d at
1208-09 (construing the FTCA to apply the law of respondeat
superior of the state where the alleged tortious conduct happened
and citing authority); see also 28 U.S.C. § 1346(b)(1) (looking
to the law of the place where the act occurred to determine
liability), conduct occurs within the scope of employment and,
therefore, is attributable to the employer when:
(a) it is of the kind the servant is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) in a case in which the force is intentionally used by the servant against another, it is not unexpectable by the master.
Brueckner v . Norwich Univ., 169 V t . 1 1 8 , 122-23, 730 A.2d 1086,
1090-91 (1999) (quoting Restatement (Second) of Agency § 229(1)
(1958) to discuss how the doctrine of respondeat superior holds
an employer vicariously liable for an employee’s torts). Conduct
is not within the scope of employment i f , among other things, it
9 is different in kind from that authorized by the employer. See
id. (citing Rest. § 228(2)).
The evidence here fairly demonstrated that Morin’s job
duties included stocking supplies. The undisputed evidence also
showed that Taite was hit by a calendar which the VA regularly
used in its offices, and that is was near the start of a new
fiscal year when calendars would have been routinely distributed.
The record amply supports the conclusion, therefore, that Morin
was performing a duty she was employed to d o , during regular
business hours, for purposes of satisfying the first three
elements of the “scope of employment” inquiry.
The fourth element, however, involving the intentional use
of force unexpected by the employer derails the government’s
case. Under no set of circumstances is it reasonable to assume,
nor did the evidence suggest, that the VA would have expected
Morin to hit Taite in the face with a calendar, or that the VA
would have authorized Morin to throw a calendar at another
employee, in the regular course of performing the job of stocking
office supplies. While the evidence was contradictory about
whether or not Morin intended to throw the calendar at Taite,
after carefully considering all of the testimony, including the
10 statements on record, I find Taite to have been more credible
than Morin.
Morin’s claim that she carefully placed the calendar in the
top slot of Taite’s 5-unit inbox was not convincing. Given her
admission that she was approximately an arm’s length distance
from the desk, her short stature, and the undisputed height of
the inbox, it seemed highly unlikely that she, in fact, actually
set the calendar into the box as she claimed. She admitted that
her relationship with Taite was strained and explained that she
knew Bennet was waiting for her, both of which support the
inference that Morin might have more casually tossed the calendar
up onto the top of the inbox. Morin failed to offer any
explanation whatsoever as to why Taite perceived to have been hit
in the face with the calendar. Her complete denial of the
incident just did not comport with common sense.
More importantly, I did not find Morin to be a credible
witness and, by contrast, found Taite to be credible. As
mentioned above, Morin completely denied that she could have done
anything which might have caused Taite to have been startled by
the calendar. Taite, on the other hand, conceded that she only
saw Morin approach from her peripheral vision. She also stated
11 that she was shocked when the calendar hit her face, which
explained her repeated questions about what had just happened.
Although Taite testified that Morin and Bennett were laughing at
her reaction, Morin insisted she only looked at Bennett in
bewilderment. Bennett’s abrupt change in testimony about what he
could remember regarding how he responded to Taite was strikingly
disingenuous, which further undermined Morin’s credibility. In
yet another contrast, Taite testified she caused their problem
the previous June by mistakenly reporting Morin and was glad to
have “mended fences.” Morin’s claim that she was never friendly
with Taite and had only a superficially cordial relationship with
her was undermined by Taite’s detailed knowledge of private
aspects of Morin’s personal life. In short, Morin’s testimony
was so consistently self-serving that it actually diminished her
credibility and undermined her version of the incident.
The evidence supports the conclusion that Morin hit Taite in
the face with the calender. While the contact might have been
the result of Morin negligently tossing the calendar rather than
intentionally aiming to hit Taite in the face, Morin would not
concede any carelessness or negiglence. I decline to accept
Morin’s claim that she in fact set the calendar in Taite’s inbox.
12 Under these circumstances, with nothing to support an inference
of an honest mistake or even excessive negligence, I find the VA
could not have expected Morin to have intended to hit another
employee with the calendars she was responsible for distributing.
I further find that nothing in the offensive way Morin
distributed the calendar served to advance the VA’s interests, as
the resulting animosity and employee upset represented by the
instant lawsuit evidences. See Brueckner, 169 V t . at 122-23, 730
A.2d at 1090-91 (discussing how the employee’s tortious conduct
must advance the employer’s interests for vicarious liability to
attach). Morin’s intentional conduct cannot be construed as
having been expected, in any manner, by the VA.
Accordingly, I conclude Morin was not acting within the
scope of her employment when Taite was struck in the face with
the calendar Morin was delivering. Plaintiff’s Motion to
Challenge the US Attorney Scope of Employment Certification
(document n o . 1 6 ) , therefore, is granted. See Gutiérrez de
Martinez, 515 U.S. at 434 (finding FTCA allows court review of
certification); see also Vélez-Díaz v . Vega-Irizarry, 421 F.3d
7 1 , 75 (1st Cir. 2005) (explaining provisional nature of scope of
employment certification).
13 b. Removal, Substitution and Dismissal
Having concluded that Morin was not acting within the scope
of her employment, the disposition of the pending motions follows
easily. The FTCA explicitly exempts certain intentional torts
from its waiver of the government’s sovereign immunity, including
the torts alleged here of assault and battery. See 28 U.S.C. §
2680(h); but see Aversa, 99 F.3d at 1209 (explaining how the
excepted intentional torts of § 2680(h) still may give rise to
respondeat superior liability if they occurred within the scope
of employment). The alleged assault and battery here describe
conduct that cannot be considered as expected by the VA when it
employed Morin as a claims assistant. Under Vermont law then,
the charged conduct falls outside the scope of her employment
and, therefore, is not actionable under the FTCA. See id.
(explaining when 28 U.S.C. § 2680(h) applies). Because Morin
acted outside the scope of her employment when she committed the
charged assault and battery, she should be re-substituted as the
defendant in this action. See Vélez-Díaz v . Vega-Irizarry, 421
F.3d at 75 (“Where plaintiffs are able to show that the employees
acted outside the scope of their employment, the employees may be
re-substituted as the party defendants.”). Defendant’s Motion to
14 Substitute the United States as Defendant (document n o . 5 ) i s ,
therefore, denied.
The US Attorney next argues this action should be dismissed,
because claims for money damages asserted by federal employees
against the United States must be made under FECA. See 5 U.S.C.
§ 8116(c) (providing FECA as the exclusive remedy for claims
against the United States for damages sustained during the course
of employment); see also Bruni v . United States, 964 F.2d 7 6 , 78
(1st Cir. 1992) (dismissing action for lack of jurisdiction where
substantial question existed whether the complained of injury was
covered by FECA). FECA is a federal worker’s compensation
statute, for losses sustained by federal employees during the
course of employment. See 5 U.S.C. § 8102(a) (requiring the
United States to compensate employees for personal injuries
sustained while in the performance of his duties). While the US
Attorney correctly argues that this court would not have
jurisdiction if the matter were to proceed against the United
States, see Bruni, 964 F.2d at 8 0 , FECA does not apply because
the United States is not the defendant in this action, Morin i s .
Cf. id. (United States Post Office allegedly responsible for
dangerous work conditions that resulted in worker’s death); c f .
15 Pourier v . United States, 138 F.3d 1267, 1268 (3rd Cir. 1998)
(FTCA claim against federal contractor and federal government is
preempted by FECA). Under the circumstances here, where the
claim was not brought against the United States, nor can the
United States be substituted as the defendant for purposes of
determining liability for the alleged assault and battery, FECA
simply does not apply. Accordingly, defendant’s Motion to
Dismiss (document n o . 6 ) is denied.
Finally, plaintiff has moved to remand this action back to
Claremont District Court. Since this action involves a tort
action between private individuals who are both residents of New
Hampshire, and does not present any federal question, this court
lacks jurisdiction over the matter. Plaintiff’s Motion to Remand
the action to Small Claims Court in Claremont, New Hampshire
(document n o . 9 ) , therefore, is granted.
16 Conclusion
As explained above, the pending motions are resolved as
follows:
Defendant’s Motion to Substitute the United States of America as Defendant for Paula Morin, document n o . 5 , denied;
Defendant’s Motion to Dismiss, document n o . 6, denied;
Plaintiff’s Motion to Challenge US Attorney Scope of Employment Certification for Paula Morin, document n o . 1 6 , granted;
Plaintiff’s Motion to Remand to Small Claims District Court in Claremont, New Hampshire, document nos. 9 & 3 8 , granted.
The clerk is ordered to enter judgment consistent with these
rulings and to close the case.
SO ORDERED. ^ - ^ 5 ^ M J ^ KL N M j e x > r ^ ^ James_R. Muirhead United States Magistrate Judge
Date: April 1 8 , 2007
cc: Brenda K. Taite, pro se T . David Plourde, Esq.