Waldrop v. Corder

638 F. Supp. 21, 1985 U.S. Dist. LEXIS 16450
District Court, W.D. Kentucky·Decided August 27, 1985·No. Civ. A. No. 84-0229-P(J)·Published

Opinion

MEMORANDUM OPINION

JOHNSTONE, Chief Judge.

The plaintiff, Kelly Waldrop, alleges that the defendants are liable for injuries Waldrop received while working for the Tennessee Valley Authority. The defendants are officers and employees of the TVA. [22] The action was filed in the Circuit Court of McCracken County, Kentucky, but removed to this court. Removal jurisdiction exists under 28 U.S.C. § 1442(a)(1). The matter is before the court on defendants’ motion for summary judgment. The motion presents three arguments: that the claims against all but two of the defendants are barred by the doctrine of official immunity; that all of the claims are barred under the Federal Employees Compensation Act (FECA); and that all of the claims are factually barred.

Waldrop concedes that his claims against Defendants Sehuppert, Spraggs, Ziegler, Latsch, Spencer and Parker are barred by the doctrine of official immunity; however, he contends that the doctrine should not be extended to protect Defendants Shelly and Corder.

Official immunity shields government officials from suit, thereby assuring the unfettered exercise of discretion necessary for effective functioning of the government. Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434 (1959). The immunity is absolute, and protection under the doctrine turns upon the type of duties entrusted to an officer rather than the officer’s mere title or position. Barr, 360 U.S. at 573-574, 79 S.Ct. at 1340-1341. Therefore, it is unimportant in the present case whether Shelly and Corder are entitled “engineers” “supervisors” or “foremen.”

Waldrop does not dispute that Shelly and Corder were entrusted with the duty of supervising employees responsible for performing janitorial and maintenance duties. Nor does he dispute that Shelly and Corder were entrusted with supervising the two employees allegedly ordered to clean the area in which Waldrop’s accident occurred. Instead, Waldrop contends that because Shelly and Corder made a decision to clean the area and then negligently failed to see that the decision was carried out, the reasoning behind the official immunity doctrine does not apply to the acts of Shelly and Corder. In other words, since immunity is designed to assure the unfettered exercise of discretion, it does not shield failures to carry out discretionary decisions already made. The court accepts that a decision was made and that Shelly and Corder negligently failed to see that the decision was carried out, but concludes that this does not affect Shelly’s and Cord-er’s entitlement to official immunity. Immunity extends to all discretionary acts taken within the “outer perimeter” of an official’s line of duty. Barr, 360 U.S. at 575, 79 S.Ct. at 1341. Even though a decision was made to clean up the area where Waldrop allegedly fell, this did not end Shelly’s and Corder’s immunity. It was still within their line of duty to see that the decision was carried out and how they chose to carry out this duty was a matter committed to their discretion. They were free to delegate the responsibility, to follow up or not follow up, and to decide when to delegate or follow up. In this light, the court concludes that Shelly and Corder are protected by official immunity. Accordingly, they are entitled to a summary judgment on the claims against them.

The preceding conclusion does not affect the claims against Defendants Hamlet and York. Hamlet and York are the TVA employees who directly performed janitorial and maintenance jobs and who allegedly were responsible for cleaning the area where the accident occurred. They are, admittedly, not protected by official immunity. Hamlet and York contend, however, that the claims against them are barred by the provisions in the FECA. The FECA is the exclusive remedy for an employee of the United States or instrumentality of the United States. 5 U.S.C. § 8116(c). Since TVA is an instrumentality of the United States, Waldrop could not bring suit against TVA. Hamlet and York contend that they were “alter egos” of TVA and, therefore, Waldrop is also barred from bringing suit against them. Thus, the issues are whether Hamlet and York were alter egos of TVA, and, if so, whether this bars Waldrop’s claims.

The court’s analysis of these issues begins with the settled proposition that the FECA does not bar suits by an employee [23] of the United States or instrumentality against a co-employee. Bates v. Harp, 573 F.2d 930, 935 (6th Cir.1978); Allman v. Hanley, 302 F.2d 559, 564 (5th Cir.1962). This does not, however, resolve the question of whether an employee can bring suit against a co-employee acting as an alter ego of the employer. The parties have presented no federal authority which does resolve the question presented. Accordingly, the court must draw upon state cases interpreting analogous workers compensation statutes in analyzing the issue. See Allman, 302 F.2d at 562-563.

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Waldrop v. Corder, 638 F. Supp. 21, 1985 U.S. Dist. LEXIS 16450 (W.D. Ky. 1985).

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