Summary
In Pendergast, an officer of the Gretna Police Department persuaded the plaintiff to quit her job and pursue employment as an Intelligence Analyst with the United States Customs Service.
Summary of this case from Mitchell v. City of New OrleansOpinion
Civil Action 98-3730, Section "T"(5)
July 10, 2001.
Before the Court is a Motion for Summary Judgment filed on behalf of defendants, the City of Gretna and the Gretna Police Department. The Court, having considered the memoranda submitted on behalf of the parties, the record, the law, and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
Officer John Leal of the Gretna Police Department was assigned to the High Intensity Drug Trafficking Area (HIDTA) task force for the New Orleans Metropolitan area. This task force is comprised of federal and local agencies. At the time the plaintiff's claims arose, six (6) United States (U.S.) Customs' agents were assigned to HIDTA, along with approximately thirty (30) non-Customs' employees assigned to the task force by their respective agencies. The personnel was then divided into three investigative groups. Customs Special Agent (SA) James Wong served as group supervisor to the group in which John Leal of the Gretna Police Department was assigned. Ms. Pendergast alleges that Officer Leal persuaded her to quit her job as a manager with McDonald's and pursue employment as an Intelligence Analyst with the U.S. Customs Service. She contends that Leal provided her with an application for federal employment which she completed and returned to him. Thereafter, Officer Leal presented her with an unsigned, type-written letter purportedly "selecting" her for employment. Officer Leal informed plaintiff of her start date for work, and drove her to work each morning. Her purported "work" consisted of driving around with Officer Leal to various locations, conducting surveillance, and sorting through the trash of various individuals. Ms. Pendergast expected to receive her first paycheck on December 22, 1997. When she did not receive a paycheck, Leal explained that her time sheet had not been submitted to the payroll office due to an administrative oversight. He encouraged her to take some time off during the holidays while he straightened things out. Later, Officer Leal informed her that he had received "cash relief money" for her which he deposited in her account. When she attempted to make a withdrawal, she discovered that there was no money in her account. Officer Leal advised her that a bank teller had stolen the money from her account and that Customs was investigating the matter. On January 15, 1998, Leal told Pendergast that the matter of the missing money had been resolved and that she should stay at home and wait for a phone call from Customs' agents. Ms. Pendergast instead went to HIDTA headquarters to inquire about her money. At this time, she was told that she was never a federal employee and the ruse was discovered. The plaintiff gave a statement to SA Wong and SA Troncoso.
In November 1998, Pendergast filed an administrative claim with the U.S. Department of Treasury, U.S. Customs Service. The claim form was returned to her as unsigned. Pendergast filed her complaint in federal court on December 18, 1998, alleging intentional wrongdoing and tortious conduct of Officer Leal, as well as vicarious liability on the part of the Gretna Police and the City of Gretna. Moreover, the plaintiff alleges that the Gretna Police and the City of Gretna are liable for acts of negligence in failing to properly select and supervise personnel and for lax security. Moreover, the complaint alleges Fourth Amendment violations of the plaintiff's right to privacy. The complaint was amended to allege sexual abuse/harassment under U.S.C. Title 7 as an additional ground of recovery against Leal, the Gretna Police Department and the City of Gretna. Subsequently, the plaintiff signed the administrative claim form and returned it on December 28, 1998. The administrative claim was denied on April 14, 1999. Thereafter, a second amended complaint was filed naming the U.S. Department of the Treasury, U.S. Customs as a defendant. The City of Gretna and Gretna Police Department have filed this Motion for Summary Judgment.
II. LAW AND ANALYSIS
A. Law on Summary Judgment
The defendant seeks to have the plaintiff's cause of action dismissed for want of affirmative evidence showing a genuine issue of material fact. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "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." FRCP 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, 76 F.3d 651 (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). 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 issue for trial." Matsushita Elec, Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (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. Industrial 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).
B. Law On Vicarious Liability
In Louisiana, vicarious liability is based upon Civil Code Article 2320, which states as follows: "Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." LA. C.C. Art. 2320. Benoit v. Roche, 657 So.2d 574, 577 (3rd Cir. 1995). The benchmark case in Louisiana interpreting vicarious liability is LeBrane v. Lewis, 292 So.2d 216 (La. 1974). Id. In LeBrane Justice Tate held that an employer is vicariously liable for the acts of an employee if the employee is acting in the course and scope of their employment. LeBrane, 292 So.2d 216.
C. Law On 42 U.S.C.A. § 1983 42 U.S.C.A. § 1983 ("1983") guarantees a private action against persons who, acting under the color of state law, deprive others of their Constitutional rights. 42 U.S.C.A. § 1983. In order to bring a 1983 action, a plaintiff must prove: (1) the conduct was committed by a person acting under the color of state law; and (2) the conduct deprived the plaintiff of a right secured by the Constitution or the laws of the United States. Martin v. Thomas, 973 F.2d 449, 452-453 (5th Cir. 1992). "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken "under color of' state law." United States v. Classic, 313 U.s. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941). "[A]cts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945).
The Supreme Court ruled that a municipality cannot be held liable under 1983 simply because it employs a tortfeasor. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978). In other words, 1983 does not provide a cause of action based on respondeat superior. Id. However, supervisory officials may be liable "when their own action or inaction, including a failure to supervise that amounts to gross negligence or deliberate indifference, is a proximate cause of the constitutional violation." Hinshaw v. Doffer 785 F.2d 1260, 1263 (5th Cir. 1986). Thus, the plaintiff must show that 1) the police chief failed to supervise or train the officer, 2) a causal connection existed between the failure to supervise or train and the violation of the plaintiff's rights, and 3) such failure to supervise or train amounted to gross negligence or deliberate indifference. Id. Usually a failure to supervise claim gives rise to section 1983 liability only when there is a history of widespread abuse. Hinshaw, 785 F.2d at 1263.
Moreover, a municipality may be liable when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. (quoting Monell, 436 U.S. at 694, 98 S.Ct. at 2037). In order to state a claim, therefore, the plaintiff must set forth facts which, if true, show that her constitutional rights were violated as a result of the city's official policy. Johnson v. Moore, 958 F.2d 92, 93 (5th Cir. 1992). The Fifth Circuit defined official policy as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.Id. at 94, Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc), cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985).
D. Title VII of the Civil Rights Act of 1964:
The Fifth Circuit has held that the filing of an administrative complaint is a jurisdictional prerequisite to a Title VII action. Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Prior to filing a judicial complaint, a plaintiff must exhaust their administrative remedies.Johnson v. Bergland, 614 F.2d 415, 417 (5th Cir. 1980). Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997). A plaintiff must file an Equal Employment Opportunity Commission ("EEOC") complaint and receive a "right to sue" letter. See Honea v. Sgs Control Services, Inc., 859 F. Supp. 1025, 1029 (E.D.Tx. 1994). The Supreme Court has outlined the procedure an aggrieved employee must follow:
Initially, the complainant must seek relief in the agency that has allegedly discriminated against him. He then may seek further administrative review with the Civil Service Commission or, alternatively, he may, within 30 days of receipt of notice of the agency's final decision, file suit in federal district court without appealing to the Civil Service Commission. If he does appeal to the Commission, he may file suit within 30 days of the Commission's final decision. In any event, the complainant may file a civil action if, after 180 days from the filing of the charge or the appeal, the agency or Civil Service Commission has not taken final action. Brown v. General Services Administration, 425 U.S. 820, 830, 96 S.Ct. 1961, 1967 (1976).Hoffman v. Boening, 596 F.2d 683, 685 (5th Cir. 1979).
E. The Court's Analysis:
In her complaint, the Plaintiff alleges the Gretna Police Department and the City of Gretna are vicariously liable for damages due to the intentional torts allegedly committed by Officer Leal, including sexual abuse/harassment under Title VII and Fourth Amendment violations of the plaintiff's right to privacy, under 42 U.S.C. § 1983. The Plaintiff also alleges the Police Department and the City of Gretna were negligent in failing to properly supervise personnel and for lax security.
First, this court must determine whether Officer Leal was under the control of the Gretna Police Department when the incidents occurred. Officer Leal was employed by the Gretna Police Department. However, Officer Leal was assigned to HIDTA task force and reported directly to the HLDTA where Customs Special Agent James Wong served as his group supervisor. The only involvement Gretna Police had with Officer Leal while he worked for the HIDTA task force was paying his salary. See Deposition of Deputy Chief Lawson, p. 10-11. Officer Leal's duties included financial investigations relative to narcotics related offenses, through surveillance, interviews, data queries and other investigative functions. His duties did not include any administrative, personnel, or procurement duties. Leal had no authority to hire or fire anyone to work with the U.S. Customs or the HIDTA task force. This court has already ruled that Officer Leal was considered a government employee at the time of the alleged incident. Pendergast v. United States of America, 1999 WL 983827, 3 (E.D. La. 1999). Therefore, this Court finds that the Gretna Police Department had no control over Officer Leal at the time of the alleged incident. Accordingly, neither the Gretna Police Department nor the City of Gretna can be held liable under the Plaintiff's vicarious liability claim.
Out of an abundance of caution, this Court will examine whether Officer Leal was in the course and scope of his employment with Gretna Police Department when the incident occurred. 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, 673 So.2d 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 in LeBrane 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, 673 So.2d at 996-997 (citing LeBrane, 292 So.2d 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 case, the court in Baumeister found that LeBrane 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. (citing Samuels 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, 292 So.2d 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, 673 So.2d at 998 (citing Hunter v. Countryside Association For The Handicapped, Inc., 710 F. Supp. 233, 239 (N.D.Ill. 1989)). InHunter the court proclaimed that 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 inBaumeister 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, 673 So.2d 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 inBaumeister to warrant a finding of vicariously liability. Baumeister, 673 So.2d at 999, n. 2. Obviously, the holding in Baumeister controls, butSamuels 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, 594 So.2d 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 wellbeing 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.
Considering the LeBrane factors, the Court concludes that the intentional tortious acts of Officer John Leal were neither primarily employment rooted, nor reasonably incidental to the performance of his employment duties. LeBrane, 292 So.2d at 218. His deliberate deception with respect to Pendergast's employment was motivated by purely personal considerations and were not incident to his employment. His conduct was not at all foreseeable from the perspective of the Gretna Police Department or the City of Gretna. Thus, as a matter of law, Officer Leal was not acting within the course and scope of his employment and there can be no finding of vicarious liability.
Furthermore, our jurisprudence makes it clear that 1983 does not provide a cause of action based on respondeat superior. Supervisory officials may be liable "when their own action or inaction, including a failure to supervise that amounts to gross negligence or deliberate indifference, is a proximate cause of the constitutional violation."Hinshaw, 785 F.2d at 1263. The Plaintiff has not met the burden for her 1983 claim by showing that 1) the police department failed to supervise or train the officer, 2) a causal connection existed between the failure to supervise or train and the violation of the plaintiff's rights, and 3) such failure to supervise or train amounted to gross negligence or deliberate indifference. Therefore, the Gretna Police Department cannot be held liable for the Plaintiff's 1983 claim.
Additionally, since respondeat superior may not be the basis of a municipality's liability, the Plaintiff must prove that her constitutional rights were violated as a result of the city's official policy. Johnson, 958 F.2d at 93. The Plaintiff has not demonstrated that Leal's actions were a result of the City of Gretna's official policy. No evidence whatsoever has been submitted to prove the factors necessary. Therefore, this Court finds the City of Gretna is not liable for Officer Leal's alleged actions under 1983.
The Plaintiff also claims that the Gretna Police Department and the City of Gretna were negligent for having lax security. However, this Court finds this allegation to be completely without merit. The Plaintiff has offered no evidence whatsoever to support her claim. Therefore, this Court finds that both the Gretna Police Department and the City of Gretna are not liable for negligent security.
Finally, this Court will examine the Plaintiff's Title VII claim. The Fifth Circuit has held that the filing of an administrative complaint is a jurisdictional prerequisite to a Title VII action. Dollis, 77 F.3d at 781. The Plaintiff has failed to show compliance with the required administrative procedures of a Title VII claim. Therefore, this Court finds the Plaintiff's Title VII claim fails.
Accordingly,
IT IS ORDERED that the Defendants' Motion for Summary Judgment, as it applies to claims asserted against the "City of Gretna and Gretna Police Department" is hereby GRANTED.
New Orleans, Louisiana this 10th day of July, 2001.