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McClain-Leazure v. Berryhill

United States District Court, S.D. Alabama, Southern Division

May 15, 2018

KIM MCCLAIN-LEAZURE, et al., Plaintiffs,
v.
NANCY A. BERRYHILL, etc., Defendant.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the named defendant's motion to dismiss. (Doc. 16). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 16, 22, 24-27), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted.

         BACKGROUND

         According to the complaint, (Doc. 1-1), [1] the lead plaintiff (“KML”) was employed by the Social Security Administration (“SSA”) as an Administrative Law Judge. Beginning in or about September 2012, KML experienced harassment, leading her to file a succession of EEO claims. These claims were resolved by settlement in October 2015. These events form the “background” and “context” of the case but are not the basis of the lawsuit. (Id. at 4-6).

         The complaint sets forth four counts, all brought against the named defendant in her official capacity as SSA Commissioner.[2] Count I alleges that, since the settlement agreement (“the Agreement”) was executed, SSA has committed the tort of outrage/intentional infliction of emotional distress in violation of Alabama law. (Doc. 1-1 at 6-9). Count II alleges that SSA breached its duty under Alabama's Employer's Liability Act. (Id. at 9-10). Count III alleges that SSA has violated the Agreement and thus has breached a contract in violation of Alabama law. (Id. at 10-15). Count IV is brought by KML's husband (“William”) and asserts a claim for loss of consortium. (Id. at 15-16). The defendant seeks dismissal of all four counts pursuant to Rules 12(b)(1) and 12(b)(6).

         DISCUSSION

         A challenge under Rule 12(b)(1) can be either facial or factual. When a defendant mounts a factual challenge, “matters outside the pleadings, such as testimony and affidavits are considered.” McElmurray v. Consolidated Government, 501 F.3d 1244, 1251 (11th Cir. 2007) (internal quotes omitted). “Since such a motion implicates the fundamental question of a trial court's jurisdiction, a trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case without presuming the truthfulness of the plaintiff's allegations.” Makro Capital of America, Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (internal quotes omitted).

         I. Outrage.

         The defendant argues that Count I is due to be dismissed on grounds of sovereign immunity, preemption and failure to exhaust administrative remedies. The Court considers these arguments in turn.

         A. Sovereign Immunity.

         “It is well settled that the United States, as a sovereign entity, is immune from suit unless it consents to be sued.” Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015).[3] However, “[t]hrough the enactment of the FTCA, the federal government has, as a general matter, waived its immunity from tort suits based on state law tort claims.” Id. The defendant argues that KML's outrage claim is among those excepted from this waiver by 28 U.S.C. § 2680(h). (Doc. 16 at 10 n.3; Doc. 27 at 4 n.3). If the defendant is correct, the Court lacks subject matter jurisdiction over this claim. Zelaya, 781 F.3d at 1322.

         The FTCA excepts from its general waiver of immunity “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). Although outrage/intentional infliction of emotional distress is not mentioned in this list, thanks to the “arising out of” language even an unlisted tort will fall within the exception “if the governmental conduct that is essential to the plaintiff's cause of action is encompassed by that tort.” Zelaya, 781 F.3d at 1333; accord Gonzalez-Jiminez de Ruiz v. United States, 378 F.3d 1229, 1231 n.2 (11th Cir. 2004); JBP Acquisitions, LP v. United States ex rel. Federal Deposit Insurance Corp., 224 F.3d 1260, 1264 (11th Cir. 2000); Metz v. United States, 788 F.2d 1528, 1534 (11thCir. 1986).

         In order to determine whether KML's outrage claim is barred, therefore, an examination of the governmental conduct essential to her claim must be undertaken. The complaint identifies the following governmental conduct as underlying the outrage claim: (1) the chief judge that had previously harassed KML was moved to an office next door to hers; (2) KML could not rely on her legal assistant - an ally of her harasser - to perform the legal assistant's duties, such that KML performed such duties (such as purchasing rubber stamps) for several months; (3) KML was denied a reasonable accommodation for a medical condition, forcing her to resign in order to safeguard her health; (4) KML's health insurance was canceled prematurely, causing her to miss chemotherapy and to delay surgery; (5) KML's request for severance pay as per governmental policy has not been addressed; and (6) the government actors knew of KML's fragile condition and that their conduct would threaten her health and life. The actors were motivated by retaliation for KML's pre-settlement conduct in reporting fraud within the agency. (Doc. 1-1 at 6-9).

         It is certainly possible for an outrage claim to rely on conduct encompassed by a tort listed in Section 2680(h). In Metz, the Eleventh Circuit ruled that the plaintiffs' claims for intentional infliction of emotional distress under Georgia law fell within that provision because the governmental conduct essential to their claim arose from an alleged false arrest and slander - both of which torts are listed in Section 2680(h). 788 F.2d at 1534-35; see also Gonzalez-Jiminez, 378 F.3d at 1231 n.2 (“[I]f the plaintiffs' allegations of deceit are essential to their intentional infliction of emotional distress claim, we lack jurisdiction under the FTCA to entertain that claim.”). Here, however, the defendant has not explained, and the Court does not discern, how the governmental conduct alleged in support of KML's outrage claim could show that her claim arises from battery, slander, deceit or any other listed tort.

         B. Preemption.

         “Under the Civil Service Reform Act of 1978 [“CSRA”]…, certain federal employees may obtain administrative and judicial review of specified adverse employment actions.” Elgin v. Department of Treasury, 567 U.S. 1, 5 (2012). The defendant argues that the CSRA provides KML's exclusive recourse and preempts her outrage claim. KML concedes she is or ...


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