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Mona Weeks v. Kianna Oswald

July 23, 2012




Before the Court is the United States' motion to substitute itself as the sole defendant in this case under the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679(d). (Dkt. 2.)*fn1 Plaintiff Mona Weeks opposes the United States' motion, arguing that substitution is improper because the individually named federal employees (both of whom are employed by the Transportation Security Administration) were not acting within the scope of their employment at the time of the allegedly tortious conduct identified in Plaintiff's complaint.

During the telephonic scheduling conference held on March 29, 2012, the Court ordered the parties to file supplemental statements of fact and accompanying affidavits to clarify the scope of employment issue. (Dkt. 8.) The Court has received and reviewed the parties' supplemental materials. As explained more fully below, the Court finds no dispute as to the character of Defendant Kianna Oswald's acts. Consequently, the Court will grant the United States' motion to substitute itself as a party defendant in place of the individually named Defendant Kianna Oswald. However, the Court finds that Plaintiff has presented facts raising a genuine dispute as to the character of Defendant Richard Clark's acts -- namely, whether his allegedly tortious actions were taken in furtherance of a private purpose rather than in furtherance of his employer's business. Given these findings, the Court concludes that an evidentiary hearing is necessary to resolve the scope of employment issue concerning Defendant Richard Clark and will defer further ruling on the United States' motion as it relates to Defendant Richard Clark until after the evidentiary hearing.


On February 3, 2012, Mona Weeks brought an action in Idaho state court against defendants Kianna Oswald and Richard Clark (collectively "Defendants"). At the time of the incident giving rise to this action, Plaintiff and Defendants were all employees of the Transportation Security Administration ("TSA") working at the Twin Falls Airport in Twin Falls, Idaho. (Pl.'s Statement of Facts ¶ 2, Dkt. 13.) Defendants held supervisory level positions and all the parties worked with or around one another. (Oswald Decl. ¶ 2, Dkt. 9-1; Clark Decl. ¶ 2, Dkt. 9-2.) Plaintiff alleges that in 2011, Defendants falsely accused Plaintiff of engaging in inappropriate behavior in the family restrooms*fn2 at the Twin Falls Airport with an officer from the Twin Falls Police Department. (Pl.'s Statement of Facts ¶ 7, Dkt. 13.) Plaintiff admits to using the family restroom regularly for health reasons, but denies that she ever shared or entered the family bathroom at the same time as anyone else. (Weeks Aff., Dkt. 13-2 at 5.) Ultimately, Plaintiff lost her job with the TSA over the allegations made by Defendants. Plaintiff's complaint alleges that the false statements constituted defamation and that Defendants' actions constituted both negligent and intentional infliction of emotional distress.

Shortly before Defendants made allegations about Plaintiff's conduct, Plaintiff had raised concerns with Defendant Oswald and her other supervisors, claiming that her work environment was hostile. (Id. at 2.) Her concerns included Defendant Clark. Additionally, Plaintiff states that she had negative dealings with Defendant Clark's girlfriend, who had been openly hostile after Plaintiff reported that the two had been showing inappropriate displays of affection in the office and break room. (Id. at 5.) Plaintiff asserts that her supervisors did nothing to remedy the hostile work environment. (Id.)

On April 14, 2011, Defendant Clark was on the airport premises during his day off to "check emails" when he claims to have witnessed a uniformed male Twin Falls police officer exiting the family restroom. (Weeks Aff. at 4.) Immediately after, Defendant Clark attempted to use the restroom but found the door locked. (Id.) A few minutes later, Defendant Clark observed Plaintiff leaving the same family restroom and asserts that at no point between these two events did he see anyone else enter the restroom. (Id.) Approximately seven days later, Defendant Oswald was performing her normal TSA duties at the time that she claims to have witnessed a similar series of events where a uniformed Twin Falls police officer exited the family restroom only minutes after Plaintiff exited the same restroom. (Id. at 4-5.; Oswald Decl. ¶ 4, Dkt. 9-1.) The officer was not seen entering the restroom after Plaintiff's exit, suggesting to Defendant Oswald the two individuals had been in the family restroom at the same time. (Id.; Oswald Decl. ¶ 4, Dkt. 9-1.)

Defendants Oswald and Clark reported their separate observations to their immediate supervisors in accordance with TSA policies and directives, provided written reports, and cooperated in an internal investigation of the incidents conducted by the Twin Falls Police Department. In May of 2011, after the internal investigation, Plaintiff was terminated from her employment with TSA for inappropriate conduct and lack of candor.


The Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly known as the Westfall Act, accords federal employees absolute immunity from common law tort claims arising out of acts undertaken during the course of their official duties. The Westfall Act's stated purpose is to "protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States." Pub. L. No. 100-694, § 2(b). As a means to achieve this purpose, the Westfall Act provides federal employees with immunity from ordinary tort suits if the complained of conduct arises out of acts performed within the scope of the defendant employee's employment. 28 U.S.C. § 2679(d)(1).

The Westfall Act allows the Attorney General to certify that the "defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose." Id. The Act further provides that "[u]pon certification . . . such claim . . . shall be deemed an action against the United States under the provisions of [the Federal Tort Claims Act], and the United States shall be substituted as the party defendant." Id. Once the court has substituted in the United States as the defendant, the plaintiff's only avenue of recovery is under the FTCA. See Osborn v. Haley, 549 U.S. 22, 230 (2007).

Because Defendants in this case are both federal employees, the United States invoked the Westfall Act and received from the Attorney General certification that the employees were acting within the scope of their employment. The Attorney General's decision regarding scope of employment certification is conclusive unless challenged. Green v. Hall, 8 F.3d 695, 698 (9th Cir. 1993). "[T]he party seeking review bears the burden of presenting evidence and disproving the Attorney General's decision to grant or deny scope of employment certification by a preponderance of the evidence." Id. In this case, Plaintiff has challenged the scope of employment certification. The Attorney General's scope of employment certification is subject to de novo review in the district court. Meridian Int'l Logistics, Inc. v. United States, 939 F.2d 740, 745 (9th Cir. 1991).

In determining whether a United States employee acted within the scope of his or her employment within the meaning of the Westfall Act, the Court applies the respondeat superior principles of the state in which the alleged tort occurred. Green, 8 F.3d at 698-99. The FTCA also authorizes the district court to hold an evidentiary hearing to resolve any factual disputes regarding scope of employment. Pelletier v. Federal Home Loan Bank of San Francisco, 968 F.2d 865, 874 (9th Cir. 1992).

1. Scope of Employment

Under Idaho state law, an employee's conduct is generally within the scope of employment if it: (1) is of the kind that he or she is employed to perform; (2) occurs substantially within the authorized limits of time and space; and (3) is actuated, at least in part, by a purpose to serve the employer. Podolan v. Idaho Legal Aid Services, Inc., 123 Idaho 937, 944 (Idaho Ct. App. 1993). However, "if the employee acts from 'purely ...

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