USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. P rez-Gim nez, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Boyle,* Senior District Judge.
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John Ward-Llamb as for appellants.
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Isabel Mu oz-Acosta, Assistant United States Attorney, with
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whom Guillermo Gil, United States Attorney, was on brief for
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appellees.
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August 16, 1995
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* Of the District of Rhode Island, sitting by designation.
BOYLE, Senior District Judge. The questions presented
BOYLE, Senior District Judge.
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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
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We summarize the facts only briefly as they are laid
out in detail in our prior opinion. See Santiago Ram rez v.
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Secretary of the Department of Defense, 984 F.2d 16 (1st Cir.
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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).
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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
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(1994). Santiago appealed.
We found that a letter Santiago had sent to the
defendants satisfied the statute's notice requirement. See
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Santiago, 984 F.2d at 19. Because the government is not immune
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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
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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
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also, 28 U.S.C. 2680(h) (1994).
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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
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The Law of the Case
The Law of the Case
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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
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Union Insurance Co. v. Walbrook Insurance Co. Ltd., 41 F.3d 764,
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769 (1st Cir. 1994) (citing United States v. Rivera-Mart nez, 931
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F.2d 148 (1st Cir.), cert. denied, __ U.S. __, 112 S. Ct. 184
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(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.),
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cert. denied __ U.S. __, 113 S. Ct. 125 (1992)).
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Here, the Court of Appeals has issued no such mandate.
Our prior opinion simply stated that the appellant's claim might
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be read to state a cause of action for intentional or negligent
infliction of emotional distress. See Santiago-Ram rez, 984 F.2d
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at 18. We remanded to the district court for a determination of
this issue. See id. at 20, 21. Moreover, this Court not only
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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
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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
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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,
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et seq. (1994). The FTCA prescribes that the government can only
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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,
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1 et seq. When an employer insures his or her employees in
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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
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law, however, intentional torts fall outside the PRWACA's
compensatory scheme. See Pacheco-Pietri v. Commonwealth of
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Puerto Rico, RE-89-524 Certified. Translation (S.Ct.P.R. 1992);
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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.,
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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.,
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54 F.3d 1548, 1558 (10th Cir. 1995). In Starr, a 1995 case in
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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
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statement. See id. These acts as alleged are well within the
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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
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(Second) of Torts 46 (1965). See also Thorpe, 984 F.2d at 545;
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Starr, 54 F.3d at 1558.
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The Supreme Court of Puerto Rico dealt with similar
factual circumstances in Pacheco-Pietri v. Commonwealth of Puerto
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Rico, RE-89-524 Certified. Translation (S.Ct.P.R. 1992).1 In
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Pacheco-Pietri the plaintiff was a corrections officer who was
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required to submit to urinalysis. See id. at 10. The forensic
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office mistakenly mixed the plaintiff's sample with that of
another employee which tested positive for cocaine. See id. As
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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
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plaintiff filed a complaint seeking damages for negligence and
emotional distress. See id. at 12.
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The Supreme Court of Puerto Rico upheld that Superior
Court's judgment dismissing the complaint. See id. at 23. The
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1 We rely on the certified translation of Pacheco-Pietri v.
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Commonwealth of Puerto Rico provided by the parties since
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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
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whether the accident occurred in the course of employment. See
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id. at 19. It stated that "when the employee suffers an accident
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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
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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.
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Here, the Fort Buchanan's Army Post Exchange Store had
a policy, similar to the drug-testing policy in Pacheco-Pietri,
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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
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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
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v. Commonwealth of Puerto Rico, RE-89-524 Cert. Translation
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(S.Ct.P.R. 1992), and Odriozola v. Superior Cosmetic Dist. Corp.,
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116 D.P.R. 485 (1985). III. CONCLUSION
III. CONCLUSION
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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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