Dorothy MACKEY, Plaintiff-Appellee, v. David W. MILAM, Travis Elmore, and United States of America, Defendants-Appellants , 154 F.3d 648 ( 1998 )

SILER, J., delivered the opinion of the court, in which KRUPANSKY, J., joined. COLE, J. (pp. 652-655), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

Plaintiff, Dorothy Mackey, initially filed this action in Ohio state court alleging that defendants, David W. Milam and Travis El-more, her superior officers in the United States Air Force, sexually harassed her. The Department of Justice authorized representation of Milam and Elmore, and the case was removed to federal court with the United States substituted as defendant. The district court, however, determined that under applicable Ohio law, Milam and Elmore were not acting within the scope of their employment when they allegedly sexually harassed Mack-ey. It therefore rejected substitution of the United States as defendant and remanded the ease to the Ohio state court. On the United States’s motion, the district court certified its scope of employment decision for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons that follow, we find that Milam and Elmore were acting within the scope of their employment and therefore REVERSE the district court’s order.

I.

Mackey was a Captain in the Air Force. Milam and Elmore were her two immediate superior officers during the times in question. Mackey alleges that on several occasions, Milam and Elmore made inappropriate sexual advances toward her.

In her complaint, Mackey states that at their first meeting, Milam locked the door to his office while she was alone with him. He often “ogled” her and made comments when she wore her skirted uniform. He also stood very "close to her and inquired about her perfume and make-up. Milam also¹ engaged in “unwanted touching” and made sexual comments in her presence.

Mackey made even more serious allegations against Elmore in her complaint. She alleged that he often stared at her breasts and made comments about her slender waist and her appearance in the.skirted uniform. During meetings, he leaned back in his chair so that-he could see under the table when she wore her skirted uniform. During one meeting, after Mackey’s neck popped, El-more began massaging her neck. On another occasion, he began touching her ankle and legs after she injured her knee.- At another time, he placed his hands around her waist in order to “measure” it. During one meeting, Mackey commented that she was not feeling well. At that point, Elmore began replicating a pelvic exam by moving his hands down Mackey’s stomach. Finally, Elmore invited Mackey to a local bar late one evening for the stated purpose of working on her resume. She met him at the bar, but when she started to leave, he initially stopped her and prevented her from entering her car.

Mackey left the Air Force in 1994. She alleges that both Milam and Elmore, who were still on active military duty, subsequently gave unfavorable assessments of her work to prospective employers.

In 1995, Mackey filed a complaint in Ohio state court against Milam and Elmore in their individual capacities, alleging various violations of Ohio common law and of Ohio’s civil rights statute. The defendants moved for summary judgment in state court on the basis of intramilitary immunity, but the state court denied that motion.

In the spring of 1996, the Department of Justice authorized representation of Milam and Elmore. The U.S. Attorney filed a certification that the defendants were acting within the scope of their employment under the Westfall Act, 28 U.S.C. § 2679(d)(2). The case was removed to federal court with the United States substituted as defendant. The case therefore became one against the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2679(d)(1). The United States moved to dismiss on the ground that FTCA claims for injuries that arise incident to military service are barred by the Feres doctrine. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

The district court denied the United States’s motion to dismiss and rejected the substitution of the United States as defendant. On the scope of employment issue, the court determined that under Ohio law, Milam and Elmore were not facilitating or promoting the business of the United States and were therefore not acting within the scope of their employment. Therefore, Milam and Elmore were not entitled to have the United States substituted as defendant. The court noted that the case had been litigated for some time in state court and remanded the matter with Milam and Elmore resubstituted as defendants.

In response, the United States filed a Rule 59(e) motion to alter or amend the judgment. The court denied that motion in part and granted it in part in an order dated May 23, 1997. The court refused to revise its order concerning the scope of employment issue and rejected the defendants’ alternative argument that they were entitled to intramili-tary immunity. However, the court did agree that where facts are disputed, the court must hold an evidentiary hearing to determine whether the plaintiff has produced sufficient threshold evidence that the events in question occurred before ruling on the immunity issue. Therefore, the court vacated its earlier order and ordered an evidentia-ry hearing, as requested by the United States, for the purpose of determining whether there was evidence that the acts alleged by Mackey in her eomplaint occurred.

The United States appealed and urged this court to take jurisdiction under the collateral order doctrine. It also filed a motion with the district court to certify the scope of employment decision for interlocutory appeal under 28 U.S.C. § 1292(b). The district court granted that motion and framed the question for interlocutory appeal as follows: “Whether the defendant Air Force officers were acting within the scope of their employment under Ohio law when they allegedly engaged in sexual harassment of the Plaintiff, an Air Force officer who worked for them.”

II.

Under 28 U.S.C. § 1292(b), this court may, “in its discretion, permit an appeal to be taken from” an interlocutory order where the district court has certified that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Because we agree with the district court that the scope of employment issue is a controlling question of law and that resolution of the issue would advance the litigation, we take jurisdiction of this appeal under 28 U.S.C. § 1292(b).¹

III.

A scope certification by the U.S. Attorney pursuant to 28 U.S.C. § 2679(d)(2) “does not conclusively establish as correct the substitution of the United States as defendant in place of the employee,” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), but “provides prima facie evidence that the employee was acting within the scope of employment.” RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1143 (6th Cir.1996) (citation omitted). Under the Westfall Act, “[w]hether an employee was acting within the scope of his employment is a question of law ... made in accordance with the law of the state where the conduct occurred.” Id. This court therefore reviews the district court’s determination de novo. Coleman v. United States, 91 F.3d 820, 823 (6th Cir.1996).

The district court relied primarily upon the Ohio Supreme Court’s decision in Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991), a case in which a church pastor was accused of engaging in nonconsensual sexual conduct with a member of his congregation. The Ohio court held that the church could not be held liable under a respondeat superior theory of liability as the pastor was not acting within the scope of his employment because his behavior was not “calculated to facilitate or promote the business for which the servant was employed.” Id. at 587 (citation omitted). The district court in this case therefore relied on Byrd to hold that Milam and Elmore were acting outside the scope of their employment because sexual harassment did not facilitate the business of the Air Force.

However, the Ohio Supreme Court in a subsequent case made clear that the rationale of Byrd did not apply to an employee’s sexual harassment of another employee over whom he or she had supervisory power. In Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 575 N.E.2d 428 (1991), the plaintiff alleged that her direct supervisor had sexually harassed her during the course of her employment. The court specifically rejected Porter Paint’s reliance on Byrd and its argument that it could not be held hable because it did not hire the employee to harass female employees. Id. at 432.

In determining whether to impose liability based on respondeat superior on an employer for the sexually harassing acts of one of its employees, federal courts have employed traditional agency principles. Specifically, they have held that where an employee is able to sexually harass another employee because of the authority or apparent authority vested in him by the employer, it may be said that the harasser’s actions took place within the scope of his employment.

Id. (citations omitted). Where the harassment takes “place during working hours, at the office, and was earned out by someone with the authority to hire, fire, promote and discipline the plaintiff,” it will normally fall ■within the employee’s scope of employment. Id. (citation omitted). The Kerans court then adopted the above standard, previously applied by federal courts, and held that there was a genuine issue as to the harasser’s supervisory powers and that dismissal of the employer was improper. Id.

In the instant case, Milam and Elmore had direct supervisory power over Mackey. Most of the alleged acts took place during working hours on the base. Moreover, Mi-lam and Elmore were able to perpetrate the harassment because their employer, the Air Force, had placed them in a supervisory position. Therefore, they were acting within the scope of their employment.²

In arguing that Milam and Elmore were acting outside the scope of their employment, Mackey focuses on at least two events that do not precisely fit the above profile. First, she argues that Elmore’s harassment of her at a local bar was outside the scope of employment because it occurred off base and after working hours. However, we find that this isolated incident does not take Elmore’s actions, as a whole, outside the scope of his employment. He convinced Mackey to come to the bar because he said he wanted to discuss her resume. Thus, it is doubtful that he would have been able to “lure” her to the meeting had he not been in a supervisory position over her.

Mackey also argues that the unfavorable job recommendations given by the defendants after she left the Air Force take their actions outside the scope of her employment because they were no longer her supervisors. However, their opinions were solicited because they had been her supervisors. Therefore, their opinions were given only because the Air Force had placed them in positions of authority. The fact that Mackey was no longer on active duty is irrelevant to the determination.

We conclude that the individual defendants were acting within the scope of their employment when they allegedly harassed Mackey. Therefore, the United States should be substituted as the defendant in this action, and the matter should not be remanded to the Ohio state court. Under the Feres doctrine, “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Mackey’s allegations go “directly to the ‘management’ of the military; [they call] into question basic choices about the discipline, supervision, and control of a serviceman ... and [are], therefore, [ ] allegation^] about which we are prohibited from inquiring.” Skees v. United States, 107 F.3d 421, 424 (6th Cir.1997)(citing United States v. Shearer, 473 U.S. 52, 58, 105 S.Ct. 8039, 87 L.Ed.2d 38 (1985))(internal quotations omitted). See also Stubbs v. United States, 744 F.2d 58 (8th Cir.1984)(holding that a claim against the United States for a servicewoman’s suicide allegedly caused by her drill sergeant’s sexual harassment was barred by Feres).

REVERSED and REMANDED for action consistent with this opinion.

1 . Defendants also argue that this court would have jurisdiction over this appeal under the collateral order doctrine, even in the absence of the district court’s certification. However, we decline to reach that alternative argument.

2 . The dissent suggests that reliance on Keransis misplaced and that this court should instead rely on Osborne v. Lyles, 63 Ohio St.3d 326, 587 N.E.2d 825, 829 (1992). In Osborne, which dealt with the liability of a police department for the actions of an off-duty officer who assaulted a civilian, the Ohio court stated that, “an employer is not liable for independent self-serving acts of his employees which in no way facilitate or promote his business.” Id. However, that quoted language was taken from Byrd, 565 N.E.2d at 588, which the Ohio Supreme Court rejected in cases of sexual harassment of an employee by her supervisor. See Kerans, 575 N.E.2d at 432.