Opinion
Civil Action NO. 99-2794 Section: "T" (5).
August 15, 2000.
ORDER AND REASONS
Before the Court is a motion of the Defendant, United States of America ("United States"), to dismiss pursuant to FED. R. Civ. P. 12(b)(1), FED. R. Civ. P. 12(b)(6), or alternatively Fed.R.Civ.P. 56(c). The Court, having studied the memoranda and exhibits submitted by the parties, the record, and the applicable law, is fully advised in the premises and ready to rule.
1. BACKGROUND
In June of 1996, Carrie Stidham ("Stidham") first expressed an interest in joining the Army to Staff Sergeant (SSG) Jerry J. Toussaint ("Toussaint"), an Army recruiter stationed at the Lake Charles Recruiting Station. Enlistment in the Army involves a written Army Services Vocational Aptitude Battery ("ASVAB"), and a physical examination.
Even though Stidham passed the ASVAB in August of 1996, she knew that she was overweight and would not pass the physical examination. Toussaint offered to help Stidham gain immediate enlistment. In October of 1996, Toussaint, driving an Army van, picked up Stidham for a trip to the Army's Military Entrance Procession Station ("MEPS") in New Orleans, for Stidham's physical examination. During the trip, Toussaint revealed a plan whereby a woman named "Jennifer" would present herself as "Carrie Stidham" to the examiner for the physical. Stidham agreed to the plan and remained in the van while Jennifer underwent the physical examination acting as "Carrie Stidham". However, Jennifer was also overweight and failed the physical examination.
In December of 1996, Toussaint and Sgt. Gregory J. Moreau ("Moreau"), invited Stidham and another recruit, Nancy Keefer ("Keefer"), to visit Fort Polk, Louisiana. En route, everyone consumed alcohol and the women were allegedly exposed to sexually explicit conversation and materials by Toussaint and Moreau. Stidham contends that she was told of "the family" by Keefer and how being a member of the family meant that she could be called upon to assist other family members.
The complaint states that one afternoon, Keefer telephoned Stidham and said that "they were needed" in New Orleans. Both Stidham and Keefer boarded a bus and were met in New Orleans by Toussaint and Sgt. Jeffrey Miller ("Miller"). Toussaint, Miller, Keefer, and Stidham made unauthorized use of two Army vehicles, checked into the Holiday Inn Hotel, drank alcohol, and visited Bourbon Street. After returning to the hotel from Bourbon Street, Toussaint and Miller allegedly took turns having sexual intercourse with both Keefer and Stidham. Stidham stated that she did not resist because she "felt obligated to Toussaint and Miller for getting her into the Army". However, Stidham's narrative states that the sexual acts were not consensual and said that both women were told to be quiet under threat of injury.
It is further asserted that, in January of 1997, Moreau offered to give Stidham a ride home from the Lake Charles recruiting station. During the trip, Moreau demanded oral sex from Stidham, which she complied. On another evening in January of 1997, Stidham claims that Miller drove her home and demanded oral sex, which she complied. Stidham states in her narrative that she complied with oral sex for Moreau and Miller out of fear for her safety.
Furthermore, the plaintiff sets forth that on a second trip to New Orleans for Stidham's physical, Keefer went along as the stand in "ringer" for Stidham. Keefer passed the physical examination for Stidham, and Stidham was given a "ship-out" date for basic training of February 2, 1997. Meanwhile, Toussaint insisted that Stidham take the ASVAB for Bobby Ottis Day ("Day") and Beth Woodson ("Woodson"). Stidham complied with Toussaint's request and took the ASVAB for Day and Woodson.
Allegedly, prior to Stidham's "ship-out" date, Toussaint called upon Stidham and Woodson to act as "ringers" (stand-ins) for Keefer. Stidham was to take the ASVAB and Woodson was to take the physical examination for Keefer. However, during the operation, a Staff Sergeant at the MEPS caught on to the scheme. After being confronted at the MEPS, Stidham confessed to the operation but did not reveal the sexual assaults. However, Stidham did reveal the sexual assaults later in a subsequent CID (military criminal investigation) meeting at Fort Polk, Louisiana.
The CID investigation yielded no evidence that the Station Commander, David Straton, of the Lake Charles Recruiting Station, or any other Army personnel had any knowledge of the alleged misconduct of Toussaint, Miller, and Moreau. (See Government's Exhibit C, p. 2). The supervisors and commanding officers never received any complaints of misconduct from any recruit or prospective recruit, including Stidham. (See Government's Exhibit D, p. 1).
Following the CID investigation, Toussaint, Miller, and Morean were placed into restricted custody. Toussaint received a General Court Martial and was found guilty for violating numerous provisions of the Uniform Code of Military Justice (UCMJ), including, Article 92 (failure to obey an order or regulation) and Article 134 (adultery). Toussaint was sentenced to one year confinement and dishonorably discharged. Miller and Moreau were separated from the Army with a Chapter 10. (See Government Exhibit E, F). Finally, Stidham allegedly moved to California to escape Toussaint's threats.
II. SUMMARY OF LAW
I. Law on Motions Under FED. R. Civ. P. 12(b)(1)
The defendant seeks to have the plaintiff's action dismissed for want of subject matter jurisdiction. A motion under Rule 12 (b)(1) of the Federal Rules of Civil Procedure should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief" Home Builders Assn. of Mississippi. Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citing Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992)). "A case is properly dismissed for lack of subject matter jurisdiction [only] when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
2. Law on Motions Under FED. R. Civ. P. 12(b)(6)
Additionally, the defendant argues that the complaint fails to state a claim upon which relief may be granted. A motion to dismiss pursuant to FED. R. Civ. P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FED. R. Civ. P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957);Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
3. Law on Motions for Judgment on the Pleadings/Summary Judgment
"If on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." FED. R. Cv. P. 12(c). In such a case, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id.
It is this Court's opinion that the motion at hand is appropriate for consideration as a motion for summary judgment pursuant to FED. R. Civ. P. 56. However, in the case at hand, the motion specifies that the Defendant is alternatively seeking summary judgment. Therefore, no further opportunity to respond need be given to the Plaintiff
4. Law on Motions Under FED. R. Civ. P. 56
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.Stults v. Conoco. Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins. Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 506 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine usue for trial."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex. Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
III. ANALYSIS
The complaint specifically states that the jurisdictional basis for the suit is grounded in the Federal Tort Claims Act ("FTCA"). Therefore, this Court finds that the allegations made are grounded in tort and thus maintainable only against the United States, to the exclusion of all federal agencies pursuant to 28 U.S.C. § 1346 (b) and § 2679(a). Thus, the "United States Army" must be dismissed for want of jurisdiction:
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, ___ U.S. ___, ___, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). Since "[s]overeign immunity is jurisdictional in nature," the United States may only be sued with its consent. Id. In the Federal Tort Claims Act ("FTCA"), Congress has given a limited consent for the federal government to be sued for tort liability: "The United States [with certain stated exceptions] shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The statutory provision regarding the jurisdictional grant over FTCA cases, 28 U.S.C. § 1346 (b), further provides,
[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
If a claim is cognizable under § 1346(b), that statute provides the exclusive remedy. Meyer, ___ U.S.at ___, 114 S.Ct. at 1001. A claim is cognizable under § 1346(b) if it is actionable thereunder, i.e., if it alleges the six elements of that provision. Thus, the claim must be "`[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'" Id. (quoting 28 U.S.C. § 1346 (b)). Unless the claim is saved by some other waiver of sovereign immunity, see id. at ____ __ ____, 114 S.Ct. at 1001-02; Hatzlachh Supply Co. v. United States, 444 U.S. 460, 462-63, 100 S.Ct. 647, 649, 62 L.Ed.2d 614 (1980), a claim which fails to state all six elements of § 1346(b) or which is otherwise excepted from § 1346(b), see 28 U.S.C. § 2680. must be dismissed for lack of subject matter jurisdiction. Fazi v. United States, 935 F.2d 535, 537 (2d Cir. 1991).Dorking Genetics v. United States, 76 F.3d 1261 (2nd Cir. 1996). The FTCA waives sovereign immunity for monetary damages for injury or loss of property caused by the negligent or wrongful act or omission of any employee of the Government "while acting within the scope of his office or employment." 28 U.S.C. § 2671.
While federal law controls who is a federal employee, the law of the state where the act or omission occurs determines the inquiry into "scope of the employment". Williams v. United States, 350 U.S. 857 (1955). Thus, this Court must determine the following two criteria: (1) if Toussaint, Moreau, and Miller are federal employees and (2) if genuine issues of fact exist regarding whether or not Toussaint, Moreau, and Miller were acting within their course and scope of employment.
Pursuant to 28 U.S.C. § 2671, the FTCA defines a "federal agency" to include the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. Furthermore, an "employee of the Government" includes officers or employees of any federal agency, members of the military or naval forces of the United States . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation. 28 U.S.C. § 2671. Toussaint, Moreau, and Miller were all sergeants in the United States Army involved in the recruitment of Stidham to join the Army. Therefore, based on the foregoing definitions it is the opinion of this Court that Officer's Toussaint, Moreau, and Miller all fit the definition of a "government employee" as set forth in 28 U.S.C. § 2671 at the time these incidents occurred.
Consequently, the Court must consider whether or not Officers Toussaint, Moreau, and Miller were acting within the course and scope of their employment during these incidents. "`Acting within the scope of his office or employment', in the case of a member of the military or naval forces of the United States . . . means acting in line of duty." 28 U.S.C. § 2671. In 1996, the Louisiana Supreme Court decided Baumeister v. Plunkett, 673 So.2d 994 (1996) (hereinafter "Baumeister"), which sets forth the standards applicable in determining vicarious liability under Louisiana law. In Baumeister, the court held that a hospital was not vicariously liable for the sexual battery committed by one of its supervisors upon a co-employee during working hours on the hospital's premises. The Louisiana Supreme Court held that:
The course and scope of employment test refers to time and place. Benoit v. Capitol Manufacturing Co., 617 So.2d 477, 479 (La. 1993), The scope of employment test examines the employment-related risk of injury. Id. . . . In fact, this court has held that in order for an employer to be vicariously liable for the tortious acts of its employee the "tortious conduct of the [employee must be] so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interest." Barto v. Franchise Enterprises. Inc., 588 So.2d 1353, 1356 (La.App. 2d Cir. 1991), writ denied, 591 So.2d 708 (1992) (quoting LeBrane v. Lewis, 292 So.2d 216, 217, 218 (La. 1974) [(hereinafter "LeBrane")]).Baumeister, at 996. "An employer is not vicariously liable merely because his employee commits an intentional tort on the business premises during working hours." Id. (quoting Scott v. Commercial Union Ins. Co., 415 So.2d 327, 329 (La.App. 2d Cir. 1982)) (other citation omitted). "Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and also in furtherance of his employer's objective." Id.
Furthermore, the court in Baumeister cites to its decision inLeBrane v. Lewis as correctly setting forth the following factors for determining the vicarious liability of an employer in such a context:
(1) whether the tortious act was primarily employment rooted;
(2) whether the violence 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.Baumeister, at 996-997 (citing LeBrane, at 218). All four factors do not necessarily have to be met before liability may be found. Id. (citing Miller v. Keating, 349 So.2d 265, 268 (La. 1977)). Moreover, the court in Baumeister notes that an employer is not vicariously liable merely because his employee commits an intentional tort on the employer's premises during working hours, but the particular facts of each case should be analyzed to determine whether the employee's tortious conduct was within the course and scope of his employment. Id. (citing Scott v. Commercial Union Ins. Co., 415 So.2d at 329.)
On the facts of the ease, the court in Baumeister found thatLeBrane factors (3) and (4) were easily met. Id. at 999. However, the court held that factors (1) and (2) were not met. Id. First, as to factor (2) the court stated that
the likelihood . . . that a nursing supervisor will find an employee alone in the nurses' lounge and sexually assault her is simply not a risk fairly attributable to the performance of the supervisor's duties. A nursing supervisor's responsibilities do not include sexually oriented physical contact with a co-employee. And it is not at all foreseeable from the perspective of the hospital that such conduct will take place on hospital premises during working hours.Id. (footnote omitted). Then, in finding under factor (1) that the supervisor's sexual assault was entirely extraneous to his employer's interests and, therefore, that serving the master's business did not actuate the servant at all, the court reasoned as follows:
Here in a footnote the court states that "[s]imilar conduct where a hospital's patient is the victim is perhaps sufficiently different to warrant a different result." Id at 999 n. 2. (citingSamuels v. Southern Baptist Hospital, 594 So.2d 571 (La.App. 4th Cir. 1992), writ denied, 599 So.2d 319 (1992) (Hospital held liable for rape of patient by nursing assistant because taking care of patient's well-being was part of employee's duties and rape was reasonably incidental to the performance of these duties, even though act was unauthorized.)).
The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. If the purpose of serving the master's business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service.Id. at 999-1000 (citing Ermert v. Hartford Insurance Co., 559 So.2d 467, 476-477 (La. 1990)).
Moreover, the court in Baumeister cites to several cases as delineating its approach to implementing the LeBrane elements to the facts of a case. Id. at 997-998. For example, the court points to LeBrane itself as being the leading case involving an employer's liability for intentional torts committed by its employees. Id. at 997. In LeBrane a dispute arose between a kitchen supervisor and a kitchen helper. LeBrane, at 217. After the supervisor fired the helper, the supervisor stabbed the helper on their way out of the building during an argument between the two. Id. The Supreme Court of Louisiana, in concluding that the dispute was "primarily employment-rooted" and thus that vicarious liability was proper, pointed to such determining factors as the fact that the fight was reasonably incidental to the performance of the supervisor's duties in connection with firing the recalcitrant employee and removing him from the business premises, and that the fight occurred on the employment premises during the hours of employment. Id. at 218.
Furthermore, the court in LeBrane stated that the rationale for finding that the employee was acting within his scope of employment was that the tortious conduct was so closely connected in time, place, and causation to his employment-duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests.Id. The LeBrane court expressly noted that the "employee's tortious conduct occurred while the employee was at least partly actuated by his purpose of acting for his employer in the discharge of the recalcitrant co-employee, and it was reasonably consequent upon or incident to his performance of his employment function of hiring and firing sub-employees." Id. at 219.
Additionally, the court in Baumeister pointed to an Illinois sexual assault case as being instructive on the issue of vicarious liability. Baumeister, at 998 (citing Hunter v. Countryside Association For The Handicapped. Inc., 710 F. Supp. 233, 239 (N.D.Ill. 1989)). In Hunter, the court proclaimed thatv in order to hold an employer liable for the intentional torts of its employees under respondeat superior, the plaintiff must show that the torts were committed in furtherance of the employment. See Hunter v. Allis-Chalmers Corp., Engine Division, 797 F.2d 1417, 1421 (7th Cir. 1986). "The tortfeasing employee must think, however misguidedly, that he is doing the employer's business in committing the wrong." Id. at 1421-1422. In Hunter v. Countryside, the defendant supervisor's alleged sexual assault can in no way be interpreted as furthering Countryside's business." 710 F. Supp. at 239.
The Court in the case at hand must consider, however, that the court in Baumeister constrained its holding with regard to sexual acts cases by stating the following:
We do not mean to state, however, that all sexual acts are of a personal nature and might not sometimes be employment rooted. "A blanket rule holding all sexual attacks outside the scope of employment as a matter of law because they satisfy the perpetrators' personal desires would draw an unprincipled distinction between such assaults and other types of crimes which employees may commit in response to other personal motivations such as anger or financial pressures." Stropes v. Heritage House Children's Center, 547 N.E.2d 244 (Ind. 1989). We note also that we are not espousing a "motivation" test which focuses solely on whether the tortfeasor's act was motivated by a desire to further his personal interests.Baumeister, at 1000. The court in Baumeister noted that the facts of Samuels v. Southern Baptist Hospital, 594 So.2d 571 (hereinafter "Samuels"), may "perhaps" have been sufficiently different from those in Baumeister to warrant a finding of vicariously liability. Baumeister, at 999, n. 2. Obviously, the holding in Baumeister controls, but Samuels presents some relevant distinctions, especially when a hospital's patient, and not a co-employee, is the victim. Id.
In Samuels, the court follows the LeBrane factors set forth earlier in deciding this sexual assault case. Samuels, at 573. Moreover, the court specifically states that "the scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks." Id. (citing Ermert, 559 So.2d at 477).
In analyzing the facts of the case, the court in Samuels found that although the employer was not negligent in employing the attacker as a nursing assistant (because the hospital performed an adequate background check of the employee, discovering no criminal record and an honorable discharge from the United States Army, to go along with the employee's satisfactory performance at the hospital before the attack), vicarious liability can be imposed upon the employer without regard to his own negligence or fault; it is a consequence of the employment relationship. Id. at 574 (citation omitted). The court in Samuels found that the assault occurred on the hospital's premises while the employee was on duty. Id. Furthermore, the court reasoned that ensuring a patient's well-being from others, including hospital staff while the patient was helpless in a locked environment was part of the hospital's normal business. Id. Taking care of the patient's well-being was part of the duties of the nurse's assistant (the attacker). Id. Thus, the court held as follows:
The tortious conduct committed by [the employee-attacker] was reasonably incidental to the performance of his duties as a nurse's assistant although totally unauthorized by the employer and motivated solely by the employee's personal interest. Further, [the employee-attacker's] actions were closely connected to his employment duties so that the risk of harm faced by the young female victim was fairly attributable to his employer, who placed the employee in his capacity as a nurse's assistant and in a position of authority and contact with the victim. See Turner v. State, 494 So.2d 1292, 1295 (La.App. 2d Cir. 1986).Id.
Using the factors outlined in LeBrane, the Court finds that the three Officers were not acting within the course and scope of their employment. First, the tortious acts committed by the three Officers were not primarily employment rooted. The acts committed by each Officer were for purely personal reasons. The Army imposes no duty on any of the three Officers to drive new recruits to New Orleans for a tour of Bourbon street, to provide new recruits with alcohol, to proposition sex from a new recruit under threat of injury, nor use potential recruits to act as stand-ins for the processing of enlistment in the Army. In addition, the Court finds that all three Officers used deliberate deception against Stidham during the recruitment process for purely personal reasons. Therefore, this Court finds that the tortious acts committed by these three Officers were not primarily employment rooted but rather entirely extraneous to the Army's interests.
Second, the Court must look to whether the violence was reasonably incidental to the performance of the employee's duties. Officers Toussaint, Moreau, and Miller were responsible for the recruitment and procurement of new recruits into the United States Army. Each of the Officers had the authority to actively recruit individuals for enlistment into the Army. None of the three Officers had a duty to accompany new recruits to New Orleans for a night out on Bourbon Street. Nor did any of the three Officers have a duty to demand any kind of sexual favors from new recruits under alleged threats of injury. Finally, no Officer had a duty to deceive the United States Army by using new recruits to circumvent the processing of enlistment into the Army. Therefore, the Court finds that the violent acts were not reasonably incidental to the performance of the employee's duties. In sum, the sexual acts were not reasonably incidental to the performance of the Officer's duties in connection with recruitment.
Third, the Court must consider whether the tortious acts occurred on the employer's premises. The Plaintiff argues that the use of government vehicles in all of the incidents constitutes the employer's premises. The two incidents involving Stidham providing oral sex to Moreau and Miller while en route to Stidham's home did occur in government vehicles. Because the two incidents occurred inside the government vehicles, the Court concludes that the tortious acts can be found to have occurred on the employer's premises.
Fourth, the Court must determine if the tortious acts occurred during the hours of employment. The Plaintiff argues that all of the incidents took place while the parties were on business trips for the United States Army; therefore, the tortious acts occurred during the hours of employment. However, a trip to New Orleans for a night out on Bourbon Street would not be considered a business trip in any sense for the United States Army. Next, the incidents of Stidham providing oral sex to Moreau and Miller during trips home from the recruitment office cannot constitute actual business trips because the Officers were simply providing a ride home. Furthermore, the recruiting office does not stay open during the early hours of the morning to entertain and parade recruits in New Orleans. Thus, the Court finds that the foregoing tortious acts did not occur during the hours of employment of the United States Army.
Taking the Lebrane factors into account and applying them to the case at hand, this Court finds that Toussaint, Moreau, and Miller were not acting within the course and scope of their employment based on the aforementioned reasons.
Even if this Court had found that Toussaint, Moreau, and Miller were acting within the scope of their employment, the actions and behavior described in the case are included in the exceptions to the FTCA under 28 U.S.C. § 2680 (h). Sovereign Immunity cannot be waived for "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights . . ." Id.
Stidham alleged direct sexual contact with Toussaint, Moreau, and Miller. Stidham claimed that Toussaint and Miller had non-consensual sexual intercourse with her during a trip to New Orleans. (See Exhibit C. p. 4). Furthermore, Stidham claims that Moreau demanded oral sex from her on a trip home from the recruiting office. On another occasion, Stidham claims that Miller demanded oral sex from her on a trip home from the recruiting office. Stidham claims she complied with Moreau and Miller's requests on both occasions for fear of her safety. (See Exhibit A, p. 4-5). This Court concludes that the actions taken together constitute a sexual assault on Stidham because Stidham claims that together with other circumstances, Miller and Moreau's threats of injury placed her in reasonable apprehension of imminent offensive contact. Therefore, Stidham's claims are barred under the FTCA by the exceptions listed in 28 U.S.C. § 2680 (h).
Moreover, in Garcia v. United States, 776 F.2d 116 (5th Cir. 1985), the plaintiff claimed that she had been subject to unwanted sexual contact from an employee in the Army recruitment office. The Garcia court held that a claim based on this contact arose out of a battery and therefore was excepted from the purview of the FTCA by 28 U.S.C. § 2680 (h).
Similar to the case of Garcia, Stidham claims that Toussaint and Miller made unwanted sexual contact with her during a trip to New Orleans. (See Exhibit C, p. 4). According to Stidham, during the trip both Toussaint and Miller had non-consensual sexual intercourse with Stidham. Following the rationale set in Garcia, this Court finds the unwanted sexual contact during the trip to New Orleans between Toussaint and Miller with Stidham constitutes a battery. Thus, Stidham's claim is barred under the exceptions to the FTCA pursuant to 28 U.S.C. § 2680 (h) for battery.
Furthermore, the plaintiff has made a claim of intentional infliction of emotional distress. The United States Court of Appeals for the Fifth Circuit stated in Truman v. United States, 26 F.3d 592, 597 (5th Cir. 1994), that the tort of intentional infliction of emotional distress does not fall within the definition of a tort listed in 28 U.S.C. § 2680 (h). However, if the conduct arises out of a tort that is listed in 28 U.S.C. § 2680 (h), then the United States of America would not waive its' sovereign immunity and the suit is barred. Conversely, if the conduct arises out of a tort not listed then the suit is not barred. Id.
In Truman, a claim of intention infliction of emotional distress was filed against an Air Force Base employee and the United States under the FTCA. The Court of Appeals for the Fifth Circuit explored the boundary between the government's sovereign immunity from the suit and the availability of recovery under the FTCA. Id. at 594. In Truman, the plaintiff alleged the defendant made numerous sexual insults, comments, and innuendos that damaged her and caused her to suffer, inter alia, mental anguish, anxiety, embarrassment, and humiliation. Id. at 595. Because theTruman court found that some offensive contact is an essential element of the tort of battery, since the plaintiff did not allege that any offensive contact directly or indirectly resulted from the defendant's actions, a battery did not occur. Id. rat 596. Therefore, an intentional infliction of emotional distress claim could not be maintained as arising from a battery.
The Court went on to state that a claim for the tort of assault is stated if(1) a person acts intending to cause an imminent apprehension in another person of harmful or offensive contact, and (2) the other person is thereby put in such imminent apprehension. Truman supra., Restatement (Second) of Torts § 21. Moreover, words alone cannot make a person liable for assault unless those words, together with other circumstances, put another "in reasonable apprehension of imminent harmful or offensive contact." Id. Because the plaintiff in Truman did not allege that any of the defendant's acts placed her in imminent apprehension of harmful or offensive contact, nor did the plaintiff claim that any of the defendant's offensive comments, together with other circumstances, placed her in reasonable apprehension of imminent offensive contact, the Truman court found the plaintiffs claim did not arise out of a claim for assault.
Unlike Truman, the three Officer's actions taken together constitute an assault and battery on Stidham. Stidham alleged that the three Officers directly or indirectly made sexual contact with her, which constitutes a battery as discussed previously. Furthermore, Stidham's allegations show that the three Officer's acts placed her in imminent apprehension of harmful or offensive contact by issuing threats to Stidham to keep silent about the behavior of the three Officers. Thus, the threats against Stidham in connection with the sexual activity constitute an assault on Stidham. There can be no liability against the United States for intentional infliction of emotional distress for actions "arising out of" conduct excepted under the FTCA. Id. Because the acts and behavior of Officer's Toussaint, Moreau, and Miller constitute an assault and battery on Stidham, this Court finds the actions fall directly within the exceptions provided under 28 U.S.C. § 2680 (h) and thus preclude a claim for intentional infliction of emotional distress.
As such, sovereign immunity is reserved and no liability may be imposed on the United States. See Atorie Air v. F.A.A., 942 F.2d 954, 957 (5th Cir. 1991). Furthermore, the United States cannot be held liable for failing to properly select personnel, supervise, or provide adequate safeguards for the United States Army.
Accordingly,
IT IS ORDERED that the Defendant's Motion to dismiss claims against the United States Army is hereby GRANTED.
IT IS FURTHER ORDERED that the defendant's Motion for Summary Judgment is hereby GRANTED, dismissing all claims asserted by the plaintiff against the United States of America.