47 F. Supp.2d 61 (1999) | Cited 0 times | D. Maine | April 7, 1999


Plaintiff Pamela Bergeron filed a six count Complaint against theUnited States Postmaster, the Maine Merged Branch 92, NationalAssociation of Letter Carriers ("Union"), and Paul Robinson and TomOstrowski, in their individual capacities, on October 23, 1998 (DocketNo. 1). She filed an Amended Complaint with only slight changes onNovember 3, 1998 (Docket No. 2), and the Court granted a motion to amendthe Amended Complaint to add a state law claim against the Union on March30, 1999 (Docket No. 15) ("Amended Complaint"). Counts I and II of theAmended Complaint allege that the United States Postal Service sexuallyharassed and discriminated against Ms. Bergeron and retaliated againsther for pursuing complaints with the Maine Human Rights Commission, inviolation of Title VII, 42 U.S.C. § 2000e et seq. ("Title VII"). InCount III, Ms. Bergeron alleges that the Union sexually harassed anddiscriminated against her in violation of Title VII. The remaining threecounts of the Amended Complaint raise state-law claims of intentionalinfliction of emotional distress (Count IV), negligent infliction ofemotional distress (Count V), and defamation (Count VI) against theindividually named Defendants, Mr. Robinson and Mr. Ostrowski.

On January 12, 1999, the United States Attorney for the District ofMaine filed a Certificate of Scope of Employment certifying that Robinsonand Ostrowski, were acting within the scope of their employment with thepostal service in regard to the allegations in the Plaintiffs AmendedComplaint (Docket No. 3). On the same day, the Postmaster General and theUnited State's filed an Answer to Plaintiffs Amended Complaint whereinthe United States denied on its own behalf, as well as on behalf ofRobinson and Ostrowski the allegations contained in Counts IV, V, andVI. See Answer (Docket No. 4) ¶¶ 56, 57, 59, 60, 62, 63, 64. Robinsonand Ostrowski have not filed an answer to the Complaint or to the AmendedComplaint on their own behalf.

From 1984 until 1998, Plaintiff worked as a postal letter carrier forthe United States Postal Service at Saco, Maine. See Amended Complaint¶ 10. Mr. Robinson is the Postmaster of the Biddeford Annex. SeeDeclaration of Paul E. Robinson (Docket No. 20) ("Robinson Declaration")¶ 2. Mr. Ostrowski was Plaintiffs immediate supervisor and his formaltitle is Supervisor, Customer Services. See Declaration of ThomasOstrowski (Docket No. 21) ("Ostrowski Declaration") ¶ 2. Mr.Ostrowski's primary duties include evaluating the daily work load, makingcarrier and route assignments for the letter carriers, making temporarychanges in route and time schedules, and authorizing overtime work. Seeid. The primary functions of Mr. Robinson's position are the generalsupervision of the employees at the Biddeford Annex and responsibilityfor community relations between the postal service branch offices and thetowns they serve. See Robinson Declaration ¶ 2. He is responsible forthe processing, distribution, delivery, and collection of mail inBiddeford, Saco, and Old Orchard, Maine. See id. Presently before

the Court are Defendants Postmaster General and the United States ofAmerica's Motion to Substitute and Motion to Dismiss, In Part, andIncorporated Memorandum of Law (D9cket No. 5). In their motion tosubstitute, Defendants move the Court to substitute the United States inplace of the individually named Defendants, Robinson and, Ostrowski, as toCounts IV-VI of the Aniended Complaint pursuant to the Westfall Act,28 U.S.C. § 2679. The premise of Defendants motion to dismiss is thatPlaintiffs claims against the United States are precluded by the FederalTorts Claim Act ("FTCA") and the Federal Employee Compensation Act("FECA"). Also before the Court is Plaintiffs Motion and IncorporatedMemorandum of Law for Entry of Default Against Defendants Robinson andOstrowski (Docket No. 14).


A. Motion to Substitute the United States for Robinson and Ostrowski.

In 1988, Congress amended the FTCA to reinforce federal employeesimmunity from tort actions. These amendments — commonly known asthe "Westfall Act" because they were a response to Westfall v. Erwin,484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988) — provide that anaction against the United States is the only remedy for injuries causedby federal employees acting within the scope" of their employment.1The Westfall Act provides in pertinent part:

(1) Upon certification by the Attorney General 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, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679 (d)(1). Accordingly, after a federal employee issued, the Attorney General2 reviews the case to determine if theemployee was acting within the scope of his or her employment when he orshe engaged in the allegedly harmful conduct, The Attorney General, maythen file a Certification of, Scope of Employment, a document certifyingthat the employee was acting within the scope of his or her employment.See id. Substitution of the United States as the exclusive defendantunder the Westfall Act confers immunity on the defendant employee. Uponsuch certification, the employee is dismissed from the action, the UnitedStates is substituted as defendant, and the case proceeds under the FTCAagainst the United States.

The United States Attorney for the District of Maine has certified thatat the time of the alleged conduct in this case, Defendants Robinson andOstrowski were acting within the scope of their employment as employeesof the United States. See Certificate of Scope of Employment (DocketNor. 3). In the certificate, the United States Attorney specificallycertified all allegations of the Amended complaint regarding intentionaland negligent infliction of emotional distress and defamation. See id.Plaintiff correctly argues, however, that, althougt the first move, theAttorney General's certification is not the "final word" on the matter ofscope of employment See Gutierrez de Martinez, 515U.S. at 434, 115 S.Ct. at 2236. The Supreme Court has held that "theAttorney General's certification that a federal employee was actingwithin the scope of his employment — a certification the executiveofficial, in cases of the kind at issue, has a compelling interest togrant — does not conclusively establish as correct the substitutionof the United States as defendant in place of the employee." Id. at 434,115 S.Ct. at 2236. Thus, although Westfall certification serves as primafacie evidence that Defendants Robinson and Ostrowski were acting withinthe scope of their employment, Brown v. Armstrong, 949 F.2d 1007, 1012(8th Cir. 1991), it does not conclusively establish that the UnitedStates should ultimately be substituted as the party defendant since thecertification is subject to judicial review.

Plaintiff challenges the United States Attorney's certification,claiming that the pleaded facts allege that Robinson and Ostrowski actedoutside the scope of their employment, requiring the Court toindependently review the certification and determine whether theDefendants were in fact acting within the scope of their employment. Ifthe Court finds that the employee was acting outside the scope of his orher employment, the Court must refuse. to substitute the United States.If the Court agrees with the certification, then the case proceedsagainst the United States under the FTCA. Plaintiff relies on theallegations in her Amended Complaint and the attached documents whichinclude a sworn affidavit submitted by Plaintiff to the Equal EmploymentOffice ("EEO") ("EEO Investigative Affidavit") to demonstrate thatOstrowski and Robinson were acting outside of the scope of theiremployment at the time of the incidents out of which Plaintiffs claimsarise.

[1] The United States Court of Appeals for the First Circuit has heldthat in situations, such as this one, where a plaintiff asserts that adefendant acted outside the scope of his or her employment despite theAttorney General's certification to the contrary, the burden of proof ison the plaintiff. See Day v. Massachusetts Air National Guard;167 F.3d 678, 685 (1st Cir. 1999); Lyons v. Brown, 158 F.3d 605, 610 (1stCir. 1998); Rogers v. Management Technology, Inc., 123 F.3d 34, 36-37(1st Cir. 1997); Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir.1996). State law controls the determination of whether a federal employeewas acting within the scope of employment. See Lyons, 158 F.3d at 609(citing Aversa, 99 F.3d at 1208-09); Kelly v. United States, 924 F.2d 355,357 (1st Cir. 1991). Maine courts apply section 228 of the Restatement(Second) of Agency on the issue of scope of employment. McLain v.Training and Development Corp., 572 A.2d 494, 497 (Me. 1990). Theprinciples set forth in the Restatement (Second) regarding the scope ofemployment are the following:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) force is intentionally used by the servant against another the use of force is not unexpectable by the master

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228, at 504 (1958). Section 230 ofthe Restatement (Second) of Agency clarifies that "an act, althoughforbidden, or done in a forbidden manner, may be within the scope ofemployment." Similarly, section 231 of the Restatement (Second) statesthat "an act may be within the scope of employment although consciouslycriminal or tortious." Finally, acts relating to work and done in

the work place during working hours are within the scope, see id. §§229, 233, 234; negligent performance of duties is within the scope, seeid. §§ 232-33, while serious intentional wrongdoing is outside it, seeid. § 231, and the motivation of the employee (to serve the master'sinterests or his own) is often an important element, see id. §§235-36." Lyons, 158 F.3d at 609. Thus, actions that are done with aprivate, rather than a work-related, purpose. to commit wrongdoing areoutside of the scope of employment and render the motivation of theemployee, in performing the act at issue a crucial, immunity-relatedfact.

Having outlined the general contours of Maine agency law, the Courtmust determine the proper method of review of a Westfall certification.In Wood v. United States, 995 F.2d 1122, 1123-24 (1st Cir. 1993) (enbanc), a Secretary for the Army brought a tort action in federal courtagainst the United States and an Army official alleging, among otherclaims against the United States, that the official had committed sexualharassment and assault and battery in violation of Massachusetts statelaw. The United States Attorney filed a Westfall Certificate that flatlydenied that the incidents of which plaintiff complained had occurred andconcluded that "at all times referenced in the Complaint . . .," theofficial was "acting within the scope of his office. . . ." Id. at 1124.The certification was accompanied by an affidavit wherein the officiallikewise denied all of the plaintiffs factual allegations. See id. Thedistrict court held that the Westfall certification was inadequate. Seeid. at 1124. After an analysis of the underlying purpose and history ofthe Westfall Act and the FTCA, the Court of Appeals for the FirstCircuit, sitting en banc, agreed with the district court that an"Attorney General should not be able, by denying the incident, to obtainemployee immunity for a tort claim that is not job related, regardless ofwhether the Attorney General believes the claim to be true or false."Id. at 1126.

[2] In holding that an Attorney General may not deny the harm-causingincident completely, the Court of Appeals for the First Circuit clarifiedthe proper form that a Westfall certificate must take. That court statedthat an Attorney General need not accept completely a plaintiffscharacterization of the conduct. See id. at 1129. Specifically, thatcourt explained:

we can (and do) insist that the certificate assume some kind of harm-causing incident, while leaving the Attorney General free to dispute characterizations of the incident and subsidiary immunity-related facts, . . . Moreover, we previously held that the Attorney General's certificate may contest a plaintiffs incident describing and incident-characterizing facts and that the court may resolve any such factual conflicts relevant to immunity, prior to trial. In Nasuti v. Scannell, 906 F.2d 802 (1st Cir. 1990), the plaintiff, injured while riding in the back of a government truck driven by federal employee Scannell, sued Scannell, claiming that Scannell had intentionally injured him by driving fast, thereby jostling him, and throwing him from side to side, in spite of" Nasuti's "entreaties" to stop. We assumed that these factual allegations, if true, would have placed Scannell's actions outside the scope of his employment. . . . But we held the immunity certificate valid, pending a pre-trial evidentiary hearing that would resolve the key immunity-related factual dispute, namely whether Scannell intended to harm Nasuti. See id. at 808. The Attorney General's certificate in Nasuti did not deny the existence of a harm-causing incident. It denied related descriptions and characterizations of that incident. By way of contrast the certificate before us denies the existence of any harm-causing incident at all.

Id. Accordingly, the purpose of a Westfall certificate is to dispute theplaintiffs characterization of the incident at issue and the AttorneyGeneral need not accept completely

a plaintiffs characterization of the conduct. In disputing thecharacterization of the conduct, the Attorney General creates a conflicton the immunity-related facts. A district court, reviewing a Westfallcertificate and considering whether the United States is the proper partydefendant and whether the federal employee is immune from suit, must alsoassume that the "harm-causing" incident occurred and resolve the incidentand subsidiary immunity-related facts that bear on the characterizationof that incident.

The basic analysis developed in Wood was further refined in Lyons v.Brown, 158 F.3d 605, 606 (1st Cir. 1998), where an employee sued theSecretary of the Department of Veterans Affairs under Title VII andbrought state law claims against her supervisor for infliction ofemotional distress, slander, and assault and battery. The AttorneyGeneral certified the supervisor's behavior in regard to a number ofspecific acts, including a work complaint that the supervisor filedagainst plaintiff, his challenges to her test requests, and his refusalsto talk to her at the hospital, but did not certify the inappropriatehugging and pushing alleged in the complaint. See id. at 607. The UnitedStates Court of Appeals for the First Circuit restated the analysisdeveloped in Wood and further instructed that, in cases where multipleincidents make up the claims against the federal employee, the "scopetest" must be applied specifically to each of the acts or incidentscontained in the complaint that make up each claim, rather than broadlyto the claims or complaint as a whole. See Lyons, 158 F.3d at 608-09. TheLyons court also identified immunity-related facts under Maine agency lawthat, if in dispute, may require an evidentiary hearing on the issue ofimmunity. Relying on the Second Restatement, the court reasoned that ifseemingly work-related acts taken by the federal employee are done with aprivate purpose on the employee's part to retaliate or discriminateagainst the plaintiff, they may be outside the scope of employment underMaine law. See Lyons, 158 F.3d at 610. However, if the act or incidentwas done in good faith to serve the employer's interest, then the conductis likely within the scope of employment even if the federal employee'sjudgment was mistaken. See id.

[3] Having set forth the basic substantive principles that guide theCourt's analysis of whether Robinson and Ostrowski acted within the scopeof their employment, the Court must determine the proper procedure thatit must follow. Immunity-related issues should be decided by the judge atthe earliest opportunity. See Mitchell v. Forsytk 472 U.S. 511, 526, 105S.Ct. 2806, 86 L.Ed.2d 411 (1985) (it is both immunity from ultimateliability after trial and immunity from the burden of going to trial atall that matters). The United States Court of Appeals for the SeventhCircuit in Taboas v. Mlynczak, 149 F.3d 576 (7th Cir. 1998), outlined thepossible procedures available in requests for immunity under the WestfallAct. In that case, the court presented the following alternatives:

A motion for substitution may be decided on the face of the complaint (akin to a motion to dismiss) when the movant contends that, even accepting the allegations of the complaint as true, the defendant acted within the scope of employment. . . . In the alternative, the motion for substitution may be decided by reference to affidavits and other evidence outside the pleadings (akin to a summary judgment motion) if the movant contests the facts as pled and the plaintiff is unable to demonstrate that a genuine issue of material fact exists with respect to scope of employment. . . . The more difficult question is how to proceed when the motion for substitution contests the facts pled in the complaint, as in a motion for summary judgment, and the summary judgment papers reveal disputed factual issues. In such a case, the district court may hold an evidentiary hearing to resolve material factual

disputes related to the scope of employment.

Taboas, 149 F.3d. at 580-82 (internal citations omitted). The Court ofAppeals for the First Circuit agrees that Immunity determinations are akinto summary judgment proceedings when affidavits and other evidenceoutside the pleadings are submitted and the relevant facts are inconflict. See Day, 167 F.3d at 686. In Lyons, the Court of Appeals forthe First Circuit likewise concluded that if a plaintiffs "proffer sowarrants and the facts alleged are in controversy," the Court may hold anevidentiary hearing to resolve the scope of employment issues. Lyons, 158F.3d at 610. In Day, the court further clarified under what circumstancesit is appropriate for a court to conduct an evidentiary hearing. TheCourt held that a plaintiff must present evidence and not rest on theallegations of his or her complaint when the government has contradictedthose allegations with materials of evidentialy quality. See Day, 167F.3d at 685-86. Thus, once the government has submitted outsideevidence, a party contesting the certification may not, according to thecourt, rely, on quasi-legal generalities in an unverified complaint. Seeid. at 686. That court further stated that, "[b]efore a court is calledupon to convene an evidentiary hearing, it is entitled to something morethan conclusory abstractions from the party demanding the hearing." Id.

[4-6] A synthesis of the case law of the last few years regardingprocedures to apply following the filing of a Westfall certificate leadsthe Court to the following conclusions: A motion for substitution may bedecided on the face of the complaint (akin to a motion to dismiss) whenthe movant contends that, even accepting the allegations of the complaintas true, the defendant acted within the scope of employment. See Taboas,149 F.3d at 580-82. When, upon the motion for substitution, the movantcontests the facts as pled, the motion may be decided by the court byreference to affidavits and other evidence outside the pleadings (akin toa summary judgment motion). See id. The district court, in reviewing aWestfall certificate, must assume that the "harm-causing" incidentoccurred and resolve the conflicts in the immunity-related facts, or thecharacterization of the incident, relevant under state law to thescope-of-employment analysis. See Wood; 995 F.2d at 1129. Finally, in thesituation where the motion for substitution contests the facts pled inthe complaint, as in a motion for summary judgment, and the summaryjudgment papers reveal disputed factual issues, the district court mayhold an evidentiary hearing to resolve material factual disputes relatedto the scope of employment. See Day, 167 F.3d at 686; Lyons, 158 F.3d at610; Taboas, F.3d at 582. To be entitled to an evidentiary hearing, aparty challenging a Westfall certificate must justify the need for one bypresenting evidence of facts that create a genuine conflict in theimmunity-related facts; the party may not rely primarily on generalitiesin unverified pleadings. See Day, 167 F.3d at 686; Lyons, 158 F.3d at610. At all times, a plaintiff who challenges a government'scertification under the Westfall Act bears the burden of proving that theindividual-employee defendant acted outside the scope of his employment.See id.; Rogers, 123 F.3d at 36-37; Aversa, 99 F.3d at 1209.

[7] Here, Plaintiff has alleged in her Amended Complaint that a numberof the acts undertaken by Robinson and Ostrowski were done withdeliberate intent to harass or retaliate against her. Under Maine law, ifPlaintiffs allegations are true, these acts are outside of the scope ofemployment. The government has provided an objective justification foreach act and incident identified by Plaintiffs Amended Complaint and hassupported its explanations with sworn declarations by Robinson andOstrowski. In its papers, the government has thoroughly explainedRobinson and Ostrowski's motives and reasons

for the action taken. In her challenge to Defendants motion to substitutethe United States as defendant to this action, Plaintiff rests on thegeneral quasi legal allegations made in her unverified Amended Complaintand statements made in her sworn EEO Investigative Affidavit that, inregard to a number of the acts and incidents, Robinson and Ostrowskiacted with a private, rather than any work-related, purpose to harass,intimidate, and retaliate against her.

In accordance with the ruling of the Court of Appeals for the FirstCircuit in Lyons, the Court examines the nine separate acts or incidentsalleged in the Amended Complaint that involve Robinson and Ostrowski, andwhich comprise Plaintiffs claims in Counts IV, V, and VI to ascertainwhether the acts were conducted outside the scope of employment.3 TheCourt will consider the motion to substitute, by reference to theevidence submitted by the parties, as akin to a summary judgment motion.The Court groups the paragraphs of the Amended Complaint into the ninespecific acts and incidents that relate to Robinson and Ostrowski. At theoutset, the Court finds that all of the acts and incidents that relate toRobinson and Ostrowski occurred in the authorized time and space limitsof their employment, see Restatement (Second) § 228(1)(b), and thatnone of the conduct involved force, see id. § 228(1)(d). In thiscase, as to all of the acts at issue, the immunity-related facts pertainto the characterization of the employees reasons for, and motivationbehind, the conduct.

First, Plaintiff alleges that Robinson and Ostrowski purposefullyplaced her "case"4 opposite that of Bruce Wainwright, who Robinson andOstrowski knew had "exposed himself" to Plaintiff in 1985, and who wasparticularly offensive to Plaintiff. In regard to this act, Plaintiffalleges the following:

22. In September of 1996 the letter carriers from surrounding post offices were moved to the Annex in Saco, Maine. Before the official move, one weekend plaintiff went to the new Annex with Mary Ann Hackett to see the new location. Postmaster Robinson, and supervisor Tom Ostrowski were there when plaintiff discovered that Wainwright's case had been put directly across from hers. Plaintiff became very upset and told Robinson and Ostrowski that she did not want to be so close to Wainwright based on what he had done, and Robinson said "Oh, what did he do just expose himself or something?". Plaintiffs case remained where it was and she complained regularly to Ostrowski and Robinson about how uncomfortable she was being near Wainwright. Plaintiff believes that she complained to either Robinson or Ostrowski each month about the ongoing harassment and hostile work environment. Plaintiff began taking anti-anxiety medication before going to work. At one point Robinson suggested sarcastically that plaintiff turn her case so that it faces outward, which was not an acceptable solution, because she would be the only person facing out, which would ostracize her even more.

39. When plaintiff returned to work on January 21, 1998, Bruce Wainwright was still placed directly across from her and continued to stare and whisper in an intimidating manner. Both Robinson and

Ostrowski were aware of it and how much it bothered plaintiff, and failed to do anything about it. Plaintiff had specifically mentioned in her first complaint to the EEO counselor, and had regularly complained about her proximity to Wainwright to both Ostrowski and Robinson. Plaintiff believes that the positioning of Wainwright to her in the first place was retaliation, and after specifically complaining about the situation, she was ridiculed and her concerns were belittled. Plaintiff was forced to confront Wainwright and his disgusting gestures, remarks and odor even though plaintiff, as well as her doctors, made it clear to Ostrowski and Robinson that this was a intolerable situation.

Amended Complaint ¶¶ 22, 39. The government agrees that Plaintiff toldOstrowski and Robinson in September of 1996 about Wainwright's priorbehavior including the fact that he had exposed himself to her in 1985.See Reply to Plaintiffs Objection to Federal Defendants Motion toSubstitute and Motion for Partial Dismissal ("Government's Reply")(Docket No. 18) at 7. However, according to Robinson and Ostrowski,Plaintiff agreed to try working across from Wainwright. See Id.Furthermore, the government contends that Plaintiff did not report tothem that Wainwright had continued to sexually harass her since 1994. SeeId. The government explains that the cases were set up in route sequenceand that there was a 30-foot open area separating Wainwright andBergeron. See Robinson Declaration ¶ 4; Ostrowski Declaration ¶3.

The arrangement of the cases in the Saco office is the kind of taskthat Robinson and Ostrowski, as supervisors of the post office, wereemployed to perform. See Restatement (Second) § 228(1)(a). Inaddition, the arrangement of the office is unquestionably actuated, atleast in part, to serve the post office as the cases are set up in routesequence presumably to aid mail sorting. See id. § 228(1)(c).Plaintiff suggests in the Amended Complaint that Robinson was sarcasticand disrespectful in his interactions with her, ignored Plaintiffsreports of additional acts of sexual harassment, and refused her requestfor removal of her case. Plaintiff also alleges that Robinson orOstrowski, in requiring her to work across from Wainwright, wereintentionally harassing or retaliating against her. Plaintiff attests inher EEO Investigative Affidavit that she "complained regularly" toRobinson and Ostrowski about how uncomfortable she was "being near"Wainwright and that she "complained to either Robinson or Ostrowski everymonth about the ongoing harassment and hostile work environment." EEOInvestigative Affidavit ¶ 14. In addition, when Plaintiff returned towork for the week of January 21 through January 27, 1998, Robinson andOstrowski were aware that Wainwright "continued to stare and whisper."EEO Investigative Affidavit ¶ 25. She states that she believed "thatthe positioning of Wainwright to me in the first place was retaliation."Id.

The Court has before it a proffer by Plaintiff that disputes thegovernment's explanation for the conduct and the facts regarding theplacement of Plaintiffs case opposite Wainwright in controversy.Plaintiffs proffer that a private, non work related purpose motivatedRobinson and Ostrowski, if true, places this conduct outside the scope ofemployment. Plaintiffs proffer does not conclusively resolve that theplacement of her case was due to a private retaliatory purpose that placesthis conduct outside the scope of employment. However, a genuine disputeas to the immunity-related facts exists on this record.

Plaintiff also contends that Ostrowski and Robinson actively condonedmale postal employees flirtations with a female postal employee namedDoreen Lemay in Plaintiffs presence. Specifically, Plaintiff alleges asfollows:

23. After the move to the Annex in 1996, the environment became increasingly hostile towards plaintiff and the other women who had come forward with complaints about sexual harassment. Many men would purposely touch, hug, kiss and engage in conversations about sex with Doreen Lemay in plaintiffs presence. Plaintiff complained to Robinson about the inappropriate touching and sexual encounters involving Doreen and certain men, and Robinson later said he had spoken to Doreen and since she was not offended by the conduct, it was acceptable. Plaintiff and Mary Ann Hackett were often timed when they were in the ladies bathroom, and not allowed to talk casually among themselves, even though their work was being performed satisfactorily. Ms. Lemay, on the other hand, would often walk around giggling and be fondled by men during work hours and was not spoken to by management. In fact, Ostrowski and Robinson routinely flirted and chatted for long periods of time with Lemay.

40. During the week in January 1998 when plaintiff attempted to go back to work, there also was continuation of inappropriate behavior between men and Doreen Lemay, which Ostrowski and Robinson knew about, participated in, and condoned. This was harassment and retaliation because plaintiff had specifically complained to Robinson about the interaction between Doreen and certain men, and felt strongly that her welcoming sexual advances made the environment hostile towards women who did not welcome such advances. As a result, Doreen was treated very well and enjoyed certain working benefits and women who did not welcome inappropriate sexual advances or dirty jokes were punished.

41. Tom Ostrowski ordered plaintiff and two women who had complained about sexual harassment not to speak to one another at work. Meanwhile, Ostrowski spent a considerable amount of time flirting with Doreen in the hallway in front of plaintiff. This is discrimination and retaliation because Doreen, who has not complained about sexual harassment and welcomes sexual advances, has more privileges than women who have complained about sexual harassment. Doreen was rewarded by Ostrowski and Robinson for putting up with dirty jokes and engaging in overt sexual acts, and women who wanted and demanded a professional environment were punished.

Amended Complaint ¶¶ 23, 40, 41. The government explains that thePlaintiff approached Robinson and told him that she had observed maleemployees flirt with Doreen Lemay. See Government's Reply at 8; RobinsonDeclaration ¶ 5. Robinson declares that he has never observed thisbehavior himself and talked to all of the supervisors, who also indicatedthat they had not observed any inappropriate physical contact. SeeRobinson Declaration ¶ 5. Ostrowski also attests that he has neverobserved any inappropriate physical contact on the part of male employeeswith Lemay. See Ostrowski Declaration ¶ 4. Robinson asserts that hespoke to Lemay, who told him that she occasionally had physical contactwith other male employees but that the contact had ceased after asupervisor informed all employees that this conduct was inappropriate.See Robinson Declaration ¶ 6. Likewise, neither Robinson norOstrowski were aware of any inappropriate conduct during the week ofJanuary of 1998. See Ostrowski Declaration ¶ 9-10; RobinsonDeclaration ¶ 20. Furthermore, both Robinson and Ostrowski denyhaving timed women in the bathroom

but, apparently in an effort to explain Plaintiffs allegation, admit thatin the past, male and female employees have taken too long in the lockerrooms. See Robinson Declaration ¶ 7; Ostrowski Declaration ¶ 4.Both deny having flirted with Lemay. See Robinson Declaration ¶ 8;Ostrowski Declaration ¶ 4. Finally, Ostrowski explains that, herequested that employees cease talking to each other and return to workand that he had made this request in the past to Plaintiff. See OstrowskiDeclaration ¶ 11.

The act of following up in regard to Plaintiff's complaints, regardingLemay is generally the kind of conduct Robinson and Ostrowski wereemployed to perform in their supervisory positions. The fact that theymay not have responded in a manner considered appropriate by Plaintiff isimmaterial on its own to the scope-of-employment analysis. Here,Plaintiff alleges in the Amended Complaint that Robinson and Ostrowskipurposely flirted5 with a female employee in her presence and, inorder to harass her, favored a female employee who welcomed their, andother male employees, advances. In contrast, Robinson and Ostrowskiflatly deny that they flirt with or favor Doreen Lemay. See RobinsonDeclaration ¶ 8; Ostrowski Declaration ¶ 4. Though theallegations in Plaintiffs Amended Complaint are not of evidentiaryquality, in the EEO Investigative Affidavit, Plaintiff attests thatRobinson was aware that male employees purposefully flirted with DoreenLemay in her presence. See EEO Investigative Affidavit ¶ 15. Sheattests that; on one particular occasion, after ordering Plaintiff andtwo other female employees to stop talking,

Ostrowski . . . spent a considerable amount of time flirting with Doreen in the hallway in front of Roger Derocher's desk in my presence. I feel this is discrimination and retaliation because Doreen, who has not complained about sexual harassment and welcomes sexual advances, has more privileges than women who have complained about sexual harassment. . . .

Id. ¶ 26. The record before the Court regarding the flirtations withDoreen Lemay in the presence of Plaintiff is in conflict. Plaintiff haspresented facts of evidentiary quality beyond the mere allegations in herAmended Complaint that dispute the government's explanation that noflirting occurred. Thus, there lies a genuine dispute as to theimmunity-related issue of whether Robinson and Ostrowski interacted withLemay in a flirtatious manner and permitted ongoing flirtations betweenother employees with the specific intent to retaliate and discriminateagainst Plaintiff.

Plaintiff also alleges that Ostrowski forced her to work an excessiveamount of overtime and that the overtime system was manipulated in amanner that denied Plaintiff her compensation. In her Amended Complaint,she alleges:

24. Plaintiff routinely placed her name on the overtime list in order to earn extra money to someday buy a farm in Vermont. Male Union members began refusing to work overtime when requested to by Ostrowski, who then ordered plaintiff to work excessive amounts of overtime. Male Union members then filed grievances, which the Union supported, claiming an inequity in the allocation of overtime hours in violation of their Union contract. Male Union members actually got paid for work they had refused to do; work that plaintiff did. This manipulation of the system and its burden on plaintiff was joked about and condoned by Union stewards.

Amended Complaint ¶ 24. The government contends that the distributionof overtime is governed by the terms of the collective bargainingagreement between the National Association of Letter Carriers ("NALC")and the postal service and that Robinson and Ostrowski did notpurposefully manipulate the system. See Government's Reply at 9-10;Robinson Declaration ¶ 9; Ostrowski Declaration ¶ 5. Inaddition, Ostrowski asserts that the male letter carriers on the overtimedelivery list did not refuse overtime assignments, as Plaintiffcontends, and that Plaintiff has never complained about workingovertime. See Ostrowski Declaration ¶ 5.

Again, the management of the overtime system is work of the kind thatOstrowski was employed to perform and is actuated by a purpose to servethe postal service. Moreover, Plaintiff has not presented any evidence tothe Court that contradicts the government's explanation andcharacterization of the conduct involving the overtime assignments.Accordingly, the Court finds that this conduct was within the scope ofRobinson and Ostrowski's employment and is properly certified as againstthe United States.

Plaintiff alleges that Robinson ordered her to stop discussingWainwright's prior acts of sexual harassment and threatened that shewould be subject to a lawsuit if she continued. Significantly, shealleges:

26. On September 5, 1997 Postmaster Robinson called plaintiff into his office for a meeting. Robinson said it was not a union matter and met alone with plaintiff. During this meeting Robinson said that both Monagle and plaintiffs Union representative said that plaintiff was thinking of writing a letter to Barbara Paterson about Wainwright's sexual harassment charges. Robinson threatened that if plaintiff continued to talk about Wainwright's past, even if what she was saying was true, she could be sued. Robinson asked plaintiff if Wainwright was going to have to "pay" for the rest of his life for what he had done in the past, and said she was bitter. Robinson made it clear that he believed plaintiff was the true troublemaker and Wainwright was a victim.

Amended Complaint ¶ 26. The government states that Robinson wasconcerned that a letter to Barbara Paterson could lead to discord in thepost office and may subject Plaintiff to another complaint filed byWainwright. See Government's Reply at 10-11; Robinson Declaration ¶11. Robinson's advising and warning Plaintiff of the consequences thatshe might have to endure if she wrote a letter regarding Wainwright'sbehavior is the kind of function that he was employed to perform andwas, according to Robinson, actuated to serve the postal service.

Here, Plaintiff alleges in her Amended Complaint that Robinson"threatened" her that she would be sued. In her EEO InvestigativeAffidavit, Plaintiff states only that she left the meeting feeling"threatened and upset" and that "Robinson made it clear that he believedI was a troublemaker and Wainwright was a victim." EEO InvestigativeAffidavit ¶ 17. Arguably, under certain circumstances, "threatening"employees is not within the scope of employment. However, Plaintiffsproffer merely suggests that she felt threatened and that Robinson did notbelieve her. This is not sufficient to create a genuine dispute regardingRobinson's intent. Accordingly, the Court finds that, in regard to themeeting on September 5, 1997, Plaintiff has not contradicted thegovernment's objective explanation and that the conduct is within thescope of Robinson's employment and is properly certified against theUnited States.

Plaintiff also contends that Ostrowski purposefully forced Plaintiff toride alone in her truck with a male employee, Bill Monagle, with whom shedid not feel comfortable because of his relationship with Wainwright andthe alleged false reports

he made to Robinson concerning Plaintiff. In regard to this incident, shealleges:

27. Following this meeting plaintiff spoke to her supervisor Tom Ostrowski and told him that when it was her turn to be inspected on her route, that she did not feel comfortable having Bill Monagle in her truck for a full day, given his ties to Wainwright and his false reports to Robinson. Ostrowski promised plaintiff that she would not have to go alone with Monagle. Ostrowski knew how upset plaintiff was about the ongoing harassment, as he would often come out to see her on her route and tell her that Wainwright's behavior was abhorrent, and that if Wainwright had done this sort of thing to his wife, Ostrowski would kill him.

29. On October 29, 1997 plaintiff was told by Ostrowski that Bill Monagle was going to accompany her alone in her truck for a "204-B" inspection. Plaintiff became very upset and reminded Ostrowski about his promise and how uncomfortable she was with Monagle. He nevertheless ordered plaintiff to go with Monagle. Plaintiff had a severe panic attack and left work and went straight to her doctor's office, crying, shaking uncontrollably, heart racing and her blood pressure had sky rocketed.

Amended Complaint ¶¶ 27, 29. The government counters Plaintiff'saccount and contends that Plaintiff never told Ostrowski or Robinson thatshe was having problems with Monagle and that Ostrowski never discussedWainwright with Plaintiff. See Government's Reply at 11-12; OstrowskiDeclaration ¶ 6; Robinson Declaration ¶ 12. The governmentexplains that on October 29, 1997, when Plaintiff became upset abouthaving Monagle accompany her, Ostrowski and Robinson simply decided todeny Plaintiffs request that a person other than Monagle supervise,having never granted such a request to an employee in the past. SeeRobinson Declaration ¶ 13; Ostrowski Declaration ¶ 7. Robinsonand Ostrowski's decision to have Monagle supervise Plaintiff despite herrequest to have another supervisor is the kind of decision they areemployed to perform and was actuated by a purpose to serve the postalservice.

The fact that, in her Amended Complaint and EEO InvestigativeAffidavit, Plaintiff states that the decision upset her does not place itoutside the scope of employment. Plaintiff attests in the EEOInvestigative Affidavit that Ostrowski knew about the ongoingharassment, and that she became extremely upset and suffered a panicattack when Ostrowski denied her request to be accompanied by anothersupervisor. See EEO Investigative Affidavit ¶¶ 18-19. Notwithstandingher assertions, Plaintiff has not set forth facts that contradict thegovernment's explanation that Robinson and Ostrowski refused Plaintiffsrequest because they had never granted such a request in the past. It isimmaterial to the scope-of-employment analysis that Plaintiff was upsetabout their decision. Because Plaintiff's proffer does not create agenuine dispute regarding Robinson and Ostrowski's purpose in denying herrequest, the Court finds that the decision in regard to Plaintiffssupervision of her route by a male employee was within the scope ofRobinson and Ostrowski's employment.

Plaintiff also contends that Robinson and Ostrowski intentionallyordered her to attend medical examinations to demonstrate that she wasmissing work for a medical reason in order to harass her. According toPlaintiffs allegations, they threatened to deny her sick leave and tosubject her to discipline for missing work if she did not report to themedical examinations. In regard to this incident she alleges:

30. Plaintiffs doctor prescribed medication and told her to stay out of work until she was stabilized.

Medical documentation explaining why plaintiff would be out of work and her diagnosis was promptly sent to Robinson and Ostrowski. All necessary administrative paperwork was immediately forwarded to Ostrowski. At that time plaintiff had hundreds of hours of available sick time.

31. During her documented leave, plaintiff repeatedly received at her home orders from Ostrowski and Robinson to report for "fitness for duty" exams and to come to work and participate in a disciplinary investigation about her departure from work in October. Throughout this period of time plaintiffs doctor provided ample documentation concerning severe anxiety and depression, coupled with an extreme case of psoriasis. On the fitness for duty order, Ostrowski wrote that he questioned whether plaintiffs symptoms were work related and suggested that she was acting insubordinately by not returning to work. Robinson threatened plaintiff with discipline and denial of sick leave if she did not report to a medical exam scheduled by Robinson. Robinson and Ostrowski knew or should have known that they did not have authority to order plaintiff to undergo a medical exam, and did so in order to intimidate and harass plaintiff.

32. Two other women who were out of work from the Saco Annex on "stress leave" were ordered by Ostrowski and Robinson to undergo "fitness for duty" exams on or about the same time that plaintiff was so ordered. Males who were out on "stress leave" were not ordered to undergo any independent medical exams. Upon information and belief, one of the other women who actually attended the exam was asked by the doctor hired by the USPS if she was conspiring with plaintiff in raising false claims of sexual harassment.

Amended Complaint ¶¶ 30, 31, 32. The government counters that Robinsonand Ostrowski believed, upon the advice of the postal service laborrelations office, that the information supplied by Plaintiff about herillness was insufficient and that a medical examination was required todetermine whether Plaintiff was unfit for work and eligible for sickleave. See Government Reply at 12-15; Ostrowski Declaration ¶ 8;Robinson Declaration ¶¶ 14-15. The government asserts that theinformation supplied by Plaintiff was insufficient in that it did notcontain a prognosis or diagnosis of Plaintiffs condition. See id. Thedecision to order an employee to undergo an examination to determine herfitness for employment is the kind of conduct that Robinson andOstrowski, in their supervisory positions, are employed to perform.Generally, such a decision is work related and is made by a purpose toserve the postal service in order to determine whether employees shouldreceive paid sick leave. Plaintiff has proffered in her affidavit thatthroughout the time that Ostrowski and Robinson ordered her to report for"fitness for duty" exams, her "doctor provided ample documentationconcerning severe anxiety and depression, coupled with an extreme case ofpsoriasis." EEO Investigative Affidavit ¶ 20. She further attests that"[o]nly when [her] lawyer intervened was [she] finally not harassedfurther about a fitness for duty exam and disciplinary action while outof work on my doctor's orders." Id. The facts related to the orders formedical examinations are in conflict. The government contends that theywere made because Plaintiffs doctor had not provided all of theinformation qualified for sick leave and Plaintiffs proffer suggests thatRobinson and Ostrowski had the necessary information and that the orderswere made to harass her. Accordingly, the immunity-related facts that goto Robinson and Ostrowski's intent are in conflict, and a genuine disputeexists on

this record as to whether the orders were within the scope of theiremployment.

Plaintiff also contends that Robinson attempted to have Plaintiffsprivate insurance benefits denied. To that end, she alleges thefollowing:

43. Plaintiff was informed by her Union steward on January 27, 1998 that Robinson wanted to see her in his office again. When Robinson learned that plaintiff wanted. to take in a female representative instead of the male Union representative, the meeting was canceled. Robinson later intentionally misrepresented on a disability insurance form that plaintiff refused to attend the meeting he had called on January 27, in an attempt to have plaintiffs private insurance benefits denied.

44. Other false statements about plaintiffs alleged refusal to have street supervisors and leaving work in October without explanation were written on forms by both Robinson and Ostrowski in an attempt to deny plaintiff her disability benefits. With no medical evidence contradicting plaintiffs own doctors diagnosis of post traumatic stress disorder and acute psoriasis caused by work related stress, Ostrowski and Robinson wrote that in their opinion, plaintiff did not have a disability.

47. On January 21, 1998 plaintiff gave Ostrowski a private disability insurance form that he needed to sign relating to her absence between October 1997 and January 1998. Ostrowski refused to sign the papers, even though plaintiff personally asked him about it many times. It was not until March of 1998 that plaintiff finally got the form signed, which only had to do with the length of plaintiffs absence. USPS, through Ostrowski, purposely withheld the form to make plaintiff suffer financially for the complaints she had made about sexual harassment.

Amended Complaint ¶¶ 43, 44, 47. The government contends that Robinsoncalled the January 27, 1998, meeting because an occupational nurseadvised him that the postal service should update Plaintiff about whatshe had missed while out on leave. See Government Reply at 17-19, 21;Robinson Declaration ¶ 20, 28. Robinson attests that he had conductedsimilar meetings on several prior occasions under similar circumstancesand no other employee had insisted upon being accompanied by anotheremployee. See Robinson Declaration ¶ 28. Robinson denied Plaintiffsrequest and canceled the meeting when Plaintiff refused to participatewithout a female employee. See id. Furthermore, Ostrowski and Robinsonexplain that they believe the statements that they made on Plaintiffsdisability form are accurate. See Robinson Declaration ¶ 30;Ostrowski Declaration ¶ 12. Neither Robinson nor Ostrowski explainwhy Plaintiff was required to ask several times for what appears to be aroutine request for a signature. However, Ostrowski does declare that hewas confused by the form because it appeared that his signature requireda conclusion that Plaintiff was disabled, which he did not support. SeeOstrowski Declaration ¶ 12.

Robinson and Ostrowski's determination that Plaintiff was notdisabled, and their inclusion in the disability application of the eventsregarding the Monagle-supervision issue and the circumstances surroundingPlaintiffs absence, are tasks and decisions that are of the kind they areemployed to perform in their supervisory positions. Furthermore, theywere actuated by the purpose of serving the postal service in itsdetermination of whether Plaintiff was disabled.

Plaintiff proffers that she believes Robinson's cancellation of themeeting was an act of discrimination, retaliation, and harassment becausehe believed that she

and Mary Ann Hackett, the employee whom Plaintiff wished to attend themeeting with her, were conspiring to bring charges of sexual harassment.See EEO Investigative Affidavit ¶ 29. She also attaches amemorandum, dated January 18, 1998, allegedly written by Robinson,wherein he writes that he believes that Plaintiff pressured Hackett tofile sexual harassment charges. See Id, Exhibit A. She further atteststhat Robinson represented on the disability form that she missed themeeting without explanation when she had, in fact, told Robinson that shewas ill. See id. 29. Plaintiff also submits in her affidavit that onJanuary 21, 1998, Robinson purposely withheld the disability insuranceform to make her suffer financially for her sexual harassmentcomplaints. See id. ¶ 33. From Plaintiffs evidence, one can inferthat Robinson and Ostrowski had a private, non-work-related purpose whenRobinson stated that he did not believe that Plaintiff was disabled andwhen Ostrowski delayed signing the form. Thus, Plaintiffs proffer placesgenuinely in dispute, the facts regarding Robinson and Ostrowski's intentwith respect to this conduct that are material to the issue of whetherthey are immune.

Plaintiff further contends that Ostrowski lengthened Plaintiffs maildelivery route in her absence and refused to provide her with assistancewith finishing her route despite the fact that such assistance wasroutinely given to male employees.

45. After Ostrowski told plaintiff the meeting with Robinson was canceled on January 27 because plaintiff wanted a female present as her representative, plaintiff told him that she was leaving at her scheduled time of 4:00 for a doctor's appointment, that she was no longer on the overtime list due to medical reasons, and that therefore she would need help if her route was going to be completed. During plaintiffs absence her route had been lengthened, and the night previously plaintiff was out on the street until after 6:00 p.m. Ostrowski refused to give plaintiff help. This was harassment and retaliation because when other male employees cannot finish their route and cannot work overtime, they are given assistance.

Amended Complaint ¶ 45. The government characterizes this act asfollows: Ostrowski reviewed Plaintiffs work load for the day anddetermined that she would be able to complete her route in time, if notearly, and that Plaintiff did not need assistance. See OstrowskiDeclaration 11 13. Furthermore, the government explains that Plaintiffsroute had not been lengthened during her absence but, rather, that a"sequencing system" had been put into effect at the Annex and, as aresult, the amount of time a carrier would spend actually delivering mailhad increased while the amount of time sorting mail in the office haddecreased. See Government Reply at 19; Robinson Declaration ¶ 31.Robinson believes that although the number of customers had increased,the route could still be completed in eight or fewer hours. See id. Thedecision not to provide Plaintiff with assistance on her mail route isthe kind of decision that Ostrowski was employed to perform in hisposition of supervising the distribution of mail and was actuated by apurpose to serve the postal service., Plaintiff has not disputed thegovernment's explanation that a new sequencing system had been put intoeffect. In her EEO Investigative Affidavit, she asserts that she believesthe denial of assistance on her mail route was an act of retaliation andharassment and that male employees requests for assistance under similarcircumstances were not refused. See EEO Investigative Affidavit ¶32. Again, the Court finds that Plaintiffs proffer places theimmunity-related facts regarding intent in dispute.

Finally, Plaintiff argues that Robinson purposefully denied her sickleave despite the fact that she followed the proper

procedure and had plenty of sick leave available.

46. On January 27, 1998 following Robinson's abrupt cancellation of the meeting after plaintiff requested a female representative, and Ostrowski's refusal to give plaintiff needed help with her route, plaintiff began to have a panic attack and felt very weak and sick to her stomach. Plaintiff told Ostrowski that she could not work any longer that day and that she was leaving and going to her doctor's immediately. Plaintiff left the Annex and went to Dr. Potyk's office hysterical, with acutely high blood pressure and extreme anxiety. The very next day Dr. Potyk faxed a medical note indicating that plaintiff was under her care and that it was unknown when she would return to work. Also on January 28, 1998 plaintiff filled out the necessary ps Form 3971 requesting sick leave for the 27th through the 30th of January. The medical note from Dr. Potyk and the 3971 form were submitted many days in advance of the end of that pay period, and plaintiff still had hundreds of hours of unused sick time. Nevertheless, her request for sick time was denied and plaintiff was charged with 5.67 hours of leave without pay by Robinson. The denial of plaintiffs request for sick time was another act of harassment and retaliation because there is no legitimate reason for denying her sick leave. Male USPS employees at the Saco Annex left work routinely, and as long as they obtained a doctor's note, filled out the necessary forms, and had available sick leave, their requests were granted by Robinson.

Amended Complaint ¶ 46. The government explains that when Plaintiffleft work, the time keeper automatically placed her in aleave-without-pay status because, at the time, there appeared to be noacceptable reason for the leave. See Government's Reply at 20; RobinsonDeclaration ¶ 32. After Plaintiffs doctor sent a note, Plaintiffssupervisor approved Plaintiffs sick leave request but the time keeperneglected to change the leave status to paid sick leave. See id. Thismistake has since been corrected, and Plaintiff has been paid for thisleave. See id. Plaintiff alleges in her Amended Complaint that her sickleave request was denied in order to harass and retaliate against her. Inher EEO Investigative Affidavit, Plaintiff does not contradict thegovernment's explanation, but she feels that the denial of her requestfor sick time was another act of "harassment and retaliation" and that"male employees leave work all the time and as long as they obtain adoctor's note, fill out the necessary forms and have available sickleave, their requests are granted." See EEO Investigative Affidavit¶ 32. Plaintiffs proffer creates a conflict in the immunity-relatedfacts.

In summary, the Court finds that the government has provided objectivework related justifications for each of the nine acts and incidentsinvolving Robinson and Ostrowski. In regard to three of the nine acts,Plaintiff did not present any evidence of facts that Robinson andOstrowski acted with an intent that would place the conduct outside thescope of employment. Specifically, the conduct is 1) the allegedmanipulation of the overtime list in paragraph 24 of the AmendedComplaint; 2) the meeting on September 5, 1997, in paragraph 26 of theAmended Complaint; and 3) the Monagle supervision incident. With regardto these three acts, as the Court did in Day, this Court has before it afactual and exculpatory account of Robinson and Ostrowski's behaviorjuxtaposed with generalities in Plaintiffs papers regarding facts thatare immaterial to the immunity issue. Accordingly, the Court finds thatPlaintiffs proffer does not justify the need for an evidentiary hearingas to those three acts and will grant the government's motion

to substitute the United States as party defendant to answer to them.

With respect to the remaining six acts, Plaintiff has profferedevidence that disputes the government's characterization. She haspresented facts of evidentiary quality in the EEO Investigative Affidavitthat create a genuine dispute as to the character of the acts in question— namely, whether Robinson and Ostrowski acted with a private,discriminatory purpose or with a work-related purpose. Because underMaine law, acts taken with a nonwork-related, private purpose are outsidethe scope of employment, a genuine dispute exists as to whether Robinsonand Ostrowski are immune from suit.6 In accordance with Lyons andDay, the Court will hold an evidentiary hearing to resolve theimmunity-related issues. At the hearing, Plaintiff will be required tomeet her burden of proving that Robinson and Ostrowski acted with anon-work-related motive when they engaged in the incidents listed in thisdecision.7

B. Motion For the Entry of A Default Judgment Against Robinson and Ostrowski.

Having concluded that an evidentiary hearing is necessary to determinewhether the United States is the proper party defendant to Counts IV, V,and VI, and whether Robinson and Ostrowski are immune from suit, theCourt must consider Plaintiffs motion to enter a default judgment againstRobinson and Ostrowski. The Court will not enter a default judgmentagainst Robinson and Ostrowski. The United States in its Answer denied,on behalf of Robinson and Ostrowski, the claims and allegations set forthagainst them in Plaintiffs Amended Complaint. Although neither Robinsonnor Ostrowski individually filed an answer, the government's Answer,wherein it responded on their behalf, suffices. Therefore, the Court willnot enter a default judgment against Robinson and Ostrowski, andPlaintiffs motion will be denied.

C. Ancillary Issues.

Having determined that three of the nine acts in the Amended Complaintthat involve Robinson and Ostrowski are properly certified to the UnitedStates and that an evidentiary hearing is necessary to determine whetherthe remaining six acts are inside or outside of the scope of employment,the Court must determine the present status of the parties to thisaction. Because the Court holds, in accordance with its decision herein,that three of the nine of the incidents that make up Counts IV, V, and VIare properly certified to the United States, Robinson, and Ostrowski areimmune from suit for these three acts. As to these three acts, the UnitedStates is substituted as a party to Counts IV, V, and VI.

The question that remains is whether the United States is to besubstituted before the Court completes the evidentiary hearing on thescope-of-employment issue, as the party defendant in respect to theremaining acts, by virtue of the Westfall certificate. Plaintiff contendsthat Robinson and, Ostrowski are defendants until, if it is to be theultimate result, the Westfall certificate is upheld by the Court. Thegovernment counters with the plain language of the statute, whichprovides that "[u]pon certification by the Attorney General that thedefendant employee was acting within the scope of his office oremployment . . . any civil action . . . commenced in a United Statesdistrict court shall be deemed an action against the United States."28 U.S.C. § 2679 (d) (emphasis added). However, any judicial "review"of the question of whether Robinson and Ostrowski are entitled toimmunity in respect to the six acts on which an evidentiary hearing is tobe conducted cannot be completed until that process is, itself,complete. Here, there is a tension between the achievement of theimmunity determination's purpose of relieving Robinson and Ostrowski. ofthe burden of proceeding through any phase of the judicial process ifthey are, in fact, immune

from suit and the promotion of judicial efficiency in thesecircumstances.

The Court agrees with the government that the language of the WestfallAct implies that the United States is properly substituted as the partyupon the filing of the Westfall certificate by the Attorney General and,thus, pending review by the district court. However, substituting theUnited States in this case prior to conducting the evidentiary hearingwould likely result in an extreme waste of judicial resources. Becausethe immunity issue in this case primarily involves the intent and motiveof Robinson and Ostrowski, the Court believes that discovery may benecessary prior to the evidentiary hearing. The Court may determine afterthe evidentiary hearing that the remaining six acts involving Robinsonand Ostrowski are not properly certified and that Robinson and Ostrowskiare not entitled to immunity. If the United States has been substitutedas the party defendant as to all of the relevant acts between the filingof the Westfall certificate, and after the evidentiary hearing andresolution of the issues generated thereby, the Court concludes thatRobinson and Ostrowski are proper defendants, Robinson and Ostrowskiwould be required to step back into the case as defendants, possiblyafter discovery is concluded. The Court finds that this would result inan avoidable waste of judicial resources and should be eschewed.8

Accordingly, pending the evidentiary hearing to determine whetherRobinson and Ostrowski were acting outside the scope of their employmentin regard to the remaining six acts, Robinson and Ostrowski remain partydefendants as to Counts IV, V, and VI.


The Court concludes that Plaintiffs proffer challenging the UnitedStates Attorney's certification of Robinson and Ostrowski warrants anevidentiary hearing to resolve the issue of whether Robinson andOstrowski acted within the scope of their employment as to six of nineacts. The Court further concludes that the United States is a partydefendant to Counts IV, V, and VI as those counts pertain to three of thenine acts. Robinson and Ostrowski remain defendants to Counts IV, V, andVI as those counts pertain to the remaining six acts. Accordingly, theCourt ORDERS that the United States of America's Motion to Substitute(Docket No. 5) be, and it hereby is, GRANTED as to the three relevantacts specified herein. An evidentiary hearing shall be conducted as towhether the remaining six acts are properly certified. The Court reservesruling on the government's motion to dismiss until after the evidentiaryhearing is completed. The Court further ORDERS that Plaintiffs motion fora default judgment against Robinson and Ostrowski (Docket No. 14) be, andit hereby is, DENIED.

1. In Westfall, the Supreme Court held that to gain immunity from asuit for a common-law tort, a federal employee would have to show (1)that he was acting within the scope of his employment, and (2) that hewas performing a discretionary function. See Westfall v. Erwin, 484 299, 108 S.Ct. at 585. In enacting 28 U.S.C. § 2679 (d)(1), theunderlying purpose was to delete the "discretionary function"requirement. See Gutierrez de Martinez v. Larnagno, 515 U.S. 417,425-26, 115 S.Ct. 2227, 2232, 132 L.Ed.2d 375 (1995).

2. The Attorney General has delegated certification "authority to theUnited States Attorneys. See 28 C.F.R. § 15.3.

3. The government provides an explanation to Plaintiff's allegationsin paragraph 25 of the Amended Complaint. It is not clear to the Courtthat these allegations pertain to Robinson and Ostrowski and are part ofCounts IV, V, and VI. Accordingly, the Court has not discussed theconduct alleged in this paragraph.

4. The Court understands "case" to mean a postal employee's workstation.

5. Plaintiff refers to a broad range of conduct as "flirting."According to plaintiff, the flirting consisted of touching, hugging,kissing, touching of breasts, "sexual back rubs," "rubbing bare legs incrotch areas," fondling, and engaging in conversations and joking aboutsex. EEO Investigative Affidavit ¶¶ 12, 15, 16.

6. In Plaintiff's Objection to Defendant Henderson's Motion forSubstitution and Motion to Dismiss, In Part and in Plaintiff's SurreplyRegarding Federal Defendant's Motion to Substitute and Motion for PartialDismissal, Plaintiff asserts several broad arguments against the Westfallcertificate which the Court rejects. Plaintiff argues generally that theacts of Robinson and Ostrowski "raise questions as to improper motives,beyond the authorized scope of employment" and that these actions servedno purpose of the postal service. Plaintiff's Objection at 4. However, asdiscussed, the United States Court of Appeals for the First Circuitrejected the method of analyzing the claims as a whole for certificationpurposes when each claim includes multiple acts and incidents, as theAmended Complaint does here. See Lyons, 158 F.3d at 607.

Plaintiff further argues that the scope of the certification is not asbroad as the government contends. She argues that the Westfallcertificate in this case does not effectively immunize all of the actionsof the individual defendants. However, the Supreme Court has cited withapproval a Westfall certificate that stated no reasons for thescope-of-employment determination and only describes the relevant conductgenerally. See Gutierrez de Martinez, 515 U.S. at 421, 115 S.Ct. at2229. Furthermore, the United States Attorney states in thescope-of-employment certificate here that he certifies that Robinson andOstrowski were acting within the scope of their employment as employeesof the United States Postal Service regarding the issues related to themanagement and operation of the Biddeford Post Office, includingpersonnel matters such as employee complaints, discipline, and otherwork-related concerns. The United States Attorney specifically statesthat he certifies the allegations contained in paragraphs 55, 58, and 61of the Amended Complaint. These paragraphs incorporate the rest of theparagraphs in the Amended Complaint. Thus, the Court rejects Plaintiff'sgeneralized argumentation and finds that the certificate is sufficientlyspecific.

7. The Court notes that in some cases, the resolution ofimmunity-related facts will necessarily result in the resolution of factsthat go to the heart of. the merits of a plaintiff's claims.Specifically, in reviewing a Westfall certificate, a court may be asked todecide an issue of fact that is common to both the validity of theWestfall certificate and to the merits of the controversy —particularly whether the federal employee acted with deliberate intent toinflict emotional distress, harass, or retaliate against the plaintiff.Although the Wood court draws a line between the "harm causing incident"and the facts that go to the characterization of that act, in some casesa district court is in the position where, to determine the validity ofthe Westfall certificate, it must resolve issues of fact regarding intentthat hold the potential to have ultimately, dispositive effect on themerits of plaintiff's claim in the same proceeding.

The majority in Wood does not address the situation where thiscommonality may occur or advise what the effect of an earlier resolutionof an issue of fact in the review of a Westfall certificate has on themerits of the claims in the case. Although acknowledging thatadministrative problems may result from drawing a line between theharm-causing incident and the characterization of that incident, theWood court reasoned that they were not insuperable and that these kindsof cases are rare. See Wood, 995 F.2d at 1130. The Court questions therarity of these cases today, given the rise in employment discriminationsuits against federal employers that include claims that contain elementsinvolving the intent with which acts are alleged to be taken againstindividual employees.

The dissent in Wood (Coffin, J.) stated that, where the same issue iscommon to the validity of the certificate and to the merits of thecontroversy, the reviewing court should resolve the issue of fact in anevidentiary hearing and dispose of the merits of the claim at the sametime if dispositive. See id. at 1336. The dissent reasoned that in a casewhere the federal employee completely denied the conduct:

It seems quite likely that the evidentiary hearing before the district judge would be an efficient course: if [the defendant employee's] version of events were accepted after the hearing, that finding would sustain the certificate and (by collateral estoppel) dispose of [plaintiffs claim on the merits at the same time. If instead [plaintiff's] version were accepted, then we think [the defendant employee] would similarly be bound by the result; he would be resubstituted as a defendant, and the case would proceed before a jury on other unadjudicated issues, such as the issue of damages.

The dissent further reasoned that it was not troubled that a plaintiffwould be deprived of trial by jury on an issue that goes to the heart ofthe merits, as well as to the validity of the certificate. Id. at1136-37. The Court need not and does not here determine the effect onPlaintiff's claims of its final determination on the scope of employmentissue.

8. The Court's decision here is in accord with the decision of theUnited States Court of Appeals for the First Circuit in Nasuti v.Scannell, 906 F.2d 802 (1st Cir. 1990). In Nasuti, a federal employeesued a co-employee for assault and battery in state court. Following theenactment of the Westfall Act, the United States Attorney certified thatthe co-employee had been acting within the scope of his employment andfiled a notice of removal and a motion to substitute the United States asthe sole defendant to all of the state law claims. See id. at 807.Plaintiff filed a motion to remand, which the district court grantedwithout making an independent scope-of-employment determination. See id.

The United States argued that the district court's remand order was anappealable final order because it effectively dismissed the United Statesas a defendant from the case, and did so in violation of the WestfallAct, 28 U.S.C. § 2679 (d)(2), which makes the Attorney General'sscope certification conclusive. See id. at 807. "In the government'sview, the Attorney General's scope certificate conferred jurisdictionupon the district court which the court could not override, at leastwithout any finding of its own that defendant Scannell had acted beyondthe scope of this employment." Id. The United States Court of Appealsagreed with the government and held that a federal court must make anindependent determination of the scope of employment issue to determineits subject-matter jurisdiction and resolve disputed rights. See id. at808. Accordingly, the Attorney General's certification conclusivelyestablished scope of employment for removal purposes pending the districtcourt's independent scope-of-employment analysis. See id. at 808. InNasuti, the United States was substituted as the party defendant prior tothe United States District Court's scope-of-employment determination.This enabled that court to retain the suit in federal court pending itsjudicial review of the Westfall certificate. See id. at 813 ("[o]nly inrelatively rare circumstances such as the present, where the factsunderlying the scope issue are disputed, need the matter be independentlyresolved by the court and at all such times the government and the suedemployee will have the benefit of a federal forum pursuant to the scopecertification.")

The government here relies on Nasuti for the proposition that after theWestfall certificate is filed and before the Court conducts itsscope-of-employment determination, the United States must be substitutedas the party defendant. The Court finds that Nasuti does not stand forthe proposition that the Court must substitute the United States as tothe remaining six acts for the period prior to its final determination onthe scope of employment issue. In Nasuti, had the United States notimmediately been substituted as defendant prior to thescope-of-employment determination, the case could not have been removedto and maintained in federal court pending that court's review of theWestfall Certificate. In cases with the same procedural posture asNasuti, granting conclusive weight to the certification enables theAttorney General to quickly remove cases from state court, and tomaintain them in federal court where all questions affecting the rightsand liabilities of federal employees while acting within the scope ofemployment will be resolved. See id. at 813. Here, immediate substitutionof the United States is not necessary to facilitate removal and wouldthwart the Court's interest in judicial efficiency.

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