LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE.
The Court has before it a motion
Plaintiff, Luke T. West ("West"), was at all times relevant to the pending motion a service member in the United States Marine Corps. West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.
At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false. Defendant, Allen, was no longer an employee of the U.S. Marine Corps at the time of the court-martial; the undisputed record establishes that her service ended on April 26, 2014.
West filed this lawsuit against the Federal Defendants on July 9, 2015, invoking the Court's diversity jurisdiction.
Pursuant to 28 U.S.C. § 2679, "commonly known as the Westfall Act," "federal employees [have] absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties." Osborn v. Haley, 549 U.S. 225, 229, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007). "When a federal employee is
The U.S. Attorney's "scope-of-employment certification is subject to judicial review." Id.; accord Williams v. United States, 71 F.3d 502, 505 (5th Cir.1995). Although the scope-of-employment certification is not "prima facie evidence," the burden of proof is on the "plaintiff to show that the defendant's conduct was not within the scope of his or her employment." Williams, 71 F.3d at 506. The Court must determine "that the employee[s], in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of their employment." Osborn, 549 U.S. at 231, 127 S.Ct. 881 (emphasis in original).
Judicial review of the scope-of-employment certification "requires the application of the law of the state in which the employee's conduct occurred." Williams, 71 F.3d at 505. All parties agree that Louisiana law governs the course-and-scope issue in this case.
"In Louisiana, `generally speaking, an employee's conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.'" White v. United States, 419 Fed.Appx. 439, 442 (5th Cir. 2011) (quoting Orgeron v. McDonald, 639 So.2d 224, 226-27 (La.1994)) (alteration omitted). "In other words, the issue is whether `the tortious conduct of the employee was so closely connected in time, place, and causation to his employmentduties as to be regarded a risk of harm fairly attributable to the employer's business.'" Id. (quoting Baumeister v. Plunkett, 673 So.2d 994, 997 (La.1996)) (alteration omitted).
"Louisiana courts tend to focus on four factors: (1) whether the tortious act was primarily employment rooted; (2) whether the act was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer's premises; and (4) whether it occurred during the hours of employment." Id. (citing Manale v. City of New Orleans, Dep't of Police, 673 F.2d 122, 126 (5th Cir.1982)). "All four of these factors need not be met in a particular case." Id. (citing Baumeister, 673 So.2d at 997). "That the `predominant motive of the servant is to
The Fifth Circuit addressed Westfall certification, defamation, and Louisiana law in White v. United States, 419 Fed. Appx. 439 (5th Cir.2011). The Court notes that such decisions are fact-intensive and White is not directly applicable to the facts here. However, the court in White suggested that an allegedly defamatory statement by a government employee might not be within the course and scope of employment if such statement was made solely on the basis of a "personal vendetta" and it was not motivated "at least to an appreciable extent" by serving the government employer. See id. at 443.
The issue is whether West has satisfied his burden of proof relative to the U.S. Attorney's scope-of-employment determination and whether he has sufficiently demonstrated that any of the Federal Defendants' "conduct was not within the scope of [their] employment." White, 419 Fed.Appx. at 442. Many factors relevant to this factual analysis are not seriously disputed, such as the employment relationships between West and the Federal Defendants, the fact that the allegations were made, the fact that West was court-martialed on the basis of many of those allegations, and the outcome of the court-martial. The Court finds it efficient to group the extensive briefing as to these issues into three disputed areas: (1) the fundamental factual disagreement between West and the government as to whether the Federal Defendants falsely incriminated West regarding the alleged sexual assault and sexual harassment; (2) the undisputed fact that Allen's employment with the Marines ended before she testified against West at the court-martial; and (3) the allegation that three defendants spit on West after his court-martial.
According to the government, the Federal Defendants, as employees of the Marine Corps, "were required to take the actions necessary to report and address any issue of sexual harassment and/or sexual assault with the appropriate United States Marine Corps officials."
The government is plainly correct that reporting sexual harassment and/or sexual assault by another Marine is within the reporting Marine's course and scope of employment. Both parties have submitted Department of Defense documentation regarding the programs established to facilitate the reporting of such allegations, which documentation establishes that the military's "goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability..., victim support, reporting procedures, and appropriate accountability."
The Court agrees that reporting sexual assault and/or sexual harassment would plainly be "primarily employment rooted" and "reasonably incidental to the performance of the employee's duties." See White, 419 Fed.Appx. at 442. Likewise, use of a system expressly created by the Marine Corps to receive and handle such complaints is sufficiently "on the employer's premises" and "during the hours of employment" to satisfy those factors, as would be testimony by a Marine at a courtmartial instigated by such reports.
However, West alleges that the underlying allegations against him were fabricated, and that making false reports of sexual assault and testifying falsely as to those allegations cannot be characterized as within the scope of the employment of a U.S. Marine Corps service member.
If such argument is to have legs, the U.S. Attorney's scope-of-employment certification depends on an underlying factual issue about which the parties disagree: whether the Federal Defendants falsely incriminated West. As a result, to challenge the certification and to show that the Federal Defendants acted outside the course and scope of their employment, West has the burden to establish that, as a factual matter, the allegations against him were false.
The Court concludes that West has not submitted sufficient evidence to meet this burden. First, it is notable that West has not submitted an affidavit or sworn statement denying the allegations against him. The assertions that the allegations were false are contained in his complaint, amended complaint, and briefing, none of which are sworn or verified. However, the Court must determine "that the employee[s],
Second, the fact that West was found not guilty of many of the charges at the court-martial is not conclusive evidence that the allegations were false. The applicable burden of proof at a court-martial is proof of guilt "beyond reasonable doubt." 10 U.S.C. § 851(c). It is well settled that acquittal on charges that must be proved beyond a reasonable doubt does "not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt." E.g., United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). Such acquittal "does not negate the possibility that a preponderance of the evidence could show that" the defendant committed the charged acts. Id.
Third, the evidence West actually submitted in opposition to the government's motion is thin. He relies primarily on purported weaknesses or "material inconsistenc[ies]" in the statements and testimony of the Federal Defendants.
The Court concludes that West's evidence consists of factual nitpicking, his personal "spin" on facts which equally tend to suggest that some of the allegations were well-founded, and secondhand credibility determinations. His submission falls well short of carrying his burden to establish as a factual matter that the allegations lodged against him by the Federal Defendants were false and, therefore, could not have had "the purpose of serving the master's business ... to any appreciable extent." White, 419 Fed.Appx. at 442 (quoting Ermert, 559 So.2d at 477) (emphasis added). Accordingly, the Court concludes that West has not carried his burden to show that the disputed statements and testimony by the Federal Defendants were made outside the course and scope of their employment, with one possible caveat as to a portion of Allen's alleged conduct, which the Court will discuss below.
As explained above, West has not established as a factual matter that Allen or any of the other Federal Defendants acted outside the course and scope of employment in connection with allegations that West committed sexual harassment and/or sexual assault. However, the undisputed record, as clarified and supplemented by the parties, establishes that Allen's employment with the U.S. Marine Corps
The government represents, and West does not dispute, that Allen was subpoenaed to testify at the court-martial. Nothing in the record suggests that Allen's testimony at the court-martial was inconsistent with the allegations she lodged while she was employed. The court-martial was the culmination of the investigation prompted by the allegations lodged by Allen and the other Federal Defendants. Accordingly, Allen's conduct towards West constitutes a singular course of action, punctuated by the fact that her employment happened to end before her testimony at the court-martial. Other than that fact, Allen is situated identically to the other Federal Defendants.
Consequently, the issue is whether, pursuant to Louisiana law, the fortuitous occurrence that Allen's employment ended before the investigation and court-martial process reached its conclusion should affect whether Allen should be considered to have been acting within the course and scope of her employment by the U.S. Marine Corps with respect to the entirety of her alleged tortious conduct. Neither party has cited Louisiana authority directly addressing whether an employee's allegedly tortious post-employment conduct can nonetheless "relate back" to the period of employment.
In Cowart v. Lakewood Quarters Ltd. Partnership, cited by the government, the issue was the employer's vicarious liability for a subordinate's attack on her supervisor immediately after an "attempted termination" of the subordinate. See 961 So.2d 1212, 1215 (La.App.1 Cir.2007). The court found that the tortfeasor remained an employee "for the duration of this transaction" and, based on the facts of that case, it also found vicarious liability because "there was no appreciable passage of time between the remarks ...regarding her termination and [her] unprovoked attack on her supervisor." Id. Cowart suggests that tortious action may be within the course and scope of employment "for the duration of [an allegedly tortious] transaction" even beyond the technical end of the employment relationship. However, the duration of the "transaction" in Cowart was much shorter than the months that passed between Allen's end of employment and her testimony at the court-martial.
In Parmer v. Suse, cited by West, the court held that a defendant was not vicariously liable for the actions of a former officer who had been terminated months before he allegedly assaulted the plaintiff. See 657 So.2d 666, 669 (La.App.1 Cir.1995). Parmer tends to suggest that a post-employment tort is not within the course and scope of that former employment. However, the tort in Parmer was an isolated physical assault which occurred completely after the end of the employment relationship. See id. at 667-68. Here, the alleged tortious conduct by Allen began while she was employed by the Marine Corps and continued through the end of her employment to her testimony at the court-martial.
In the absence of a Louisiana case directly on point, the Court looks to the principles applied by Louisiana courts when deciding questions of course and
Reed v. House of Decor, Inc., 468 So.2d 1159, 1168 (La.1985). As noted above, Louisiana courts also consider the LeBrane factors: "(1) whether the tortious act was primarily employment rooted; (2) whether the act was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer's premises; and (4) whether it occurred during the hours of employment." White, 419 Fed.Appx. at 442.
As noted above, the LeBrane factors are satisfied as to Allen's allegations against West made while she was employed by the Marine Corps. Nothing in the record suggests that her allegations subsequently changed or that her testimony at the court-martial was inconsistent with her prior allegations. Furthermore, Allen would not have testified at the court-martial unless she had previously made those allegations in the course and scope of her employment, and her testimony at the court-martial was compelled by subpoena rather than voluntary. Accordingly, the Court concludes that pursuant to Louisiana law, Allen's post-employment conduct was also within the course and scope of her former employment as part of the entire allegedly tortious "transaction." Cf. Cowart, 961 So.2d at 1215. Considering the alleged tortious "transaction" as a whole to be within the course and scope of Allen's employment, even though Allen's employment technically ended in the middle of the transaction, is consistent with Louisiana's policy of allocating risk for the purposes of determining course and scope of employment. The Court concludes that the U.S. Attorney's course-and-scope certification should be upheld in its entirety with respect to defendant, Allen, including Allen's conduct occurring after April 26, 2014.
Finally, the Court finds that West has failed to carry his burden with respect to his allegation that Parrott, Rieth, and Allen spit on him following the court-martial.
The Court does not find that an evidentiary hearing is warranted. See Simon v.
Finally, in a surreply, West contends that Rieth and Parrott should not be dismissed because his amended complaint should be construed as asserting Bivens claims against those defendants, which claims would not be subject to dismissal pursuant to the government's motion.
West has previously characterized his claims against Rieth and Parrott as arising only under state law.
