UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MARKIA BRYANT,

Plaintiff,

v. Civil Action No. 20-4 (JEB)

UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION

Plaintiff Markia Bryant, a contractor at the U.S. Department of Veterans Affairs, filed

this Federal Tort Claims Act suit against the United States alleging that a VA employee, George

Jones, sexually harassed and assaulted her in the workplace. The Government moved to dismiss,

correctly noting that this Court lacks subject-matter jurisdiction because the United States retains

sovereign immunity from most FTCA-based intentional-tort claims. Apparently acknowledging

the soundness of the Government’s position, Plaintiff responded by seeking to amend her

Complaint to recast her FTCA allegations in terms of negligence. As the Court finds that one of

Bryant’s new claims is not clearly barred, it will grant her Motion in part and deny it in part.

I. Background

In recounting the facts, the Court assumes that those alleged in the proposed Amended

Complaint are true. The events giving rise to this action occurred during Plaintiff’s employment

as a medical-supply technician at the VA Medical Center here in Washington. See ECF No. 13,

Exh. 1 (First Am. Compl.), ¶¶ 4, 7. Bryant’s direct employer was Calloway & Associates, which staffed her at the Medical Center pursuant to a contract with the VA. Id., ¶¶ 7, 35. While there,

Plaintiff alleges that George Jones, an employee of the VA, sexually harassed and assaulted her

during work hours and on work premises. Id., ¶¶ 8–33. From June 2017 to January 2018,

Bryant claims that Jones spoke to her with “sexual language,” “ask[ed] [her] for sex . . .

whenever he got her alone,” “attempted to forcibly kiss [her] on the mouth” on an elevator,

“slapped her butt” while waiting for an elevator, tried to follow her into private rooms, cornered

her while demanding she “go out on a date with him,” and otherwise “stalk[ed] and assault[ed]”

her. Id. She alleges that this treatment caused her mental and emotional distress. Id., ¶ 40.

Bryant further alleges that the VA was aware of both Jones’s propensity to engage in

such conduct and the particular ongoing harassment itself. More specifically, she claims that the

VA knew of his tendencies prior to contracting with Calloway, given his “documented history

with the VA and the VA police of harassment, assault, and stalking male and female employees

dating back to 2011.” Id., ¶ 36. In addition, she alleges that she reported Jones’s behavior to the

VA police after the June 2017 sexual assault on the elevator, again after the July 2017 assault

while waiting for the elevator, and generally through January 2018. Id., ¶¶ 18–19, 24–25, 27.

Bryant alleges that she also informed various “VA supervisors and managers” of Jones’s actions

throughout this time. Id., ¶¶ 27, 31. The VA, however, took no action to protect her from this

harm. Id., ¶¶ 19–21, 26, 32, 38–39.

In her initial Complaint, Plaintiff set forth FTCA counts for assault, battery, and

negligence under a respondeat superior theory of liability. See ECF No. 1 (Compl.), ¶¶ 35–73.

The Government moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),

asserting that the Court lacks jurisdiction to adjudicate intentional-tort claims against the United

States, which includes negligence counts arising out of intentional torts. See ECF No. 11-1

2 (MTD) at 3–6 (citing FTCA’s express bar on for “claim[s] arising out of assault [or] battery”)

(quoting

(h)). “[I]n light of” Defendant’s response, Plaintiff now seeks to

amend her Complaint to “clarify and narrow her existing claims against Defendant . . . .” ECF

No. 13 (Mot. to Amend) at 1. The proposed Amended Complaint now focuses solely on

negligence, rather than on assault and battery.

Specifically, Count I asserts breach of two separate duties. The first, which Bryant

contends that the Government assumed before she started work at the VA, was to “warn the

Plaintiff of, and protect the Plaintiff from, known and unknown dangers on its premises,” as she

was a “business invite[e]” of the VA. See First Am. Compl., ¶¶ 43–44. Bryant alleges that the

Government breached this duty by “fail[ing] to notify Plaintiff or Plaintiff’s employer of the

numerous documented instances of assault, battery, harassment, and stalking by Jones dating

back to 2011,”

, and that this failure to warn “caused the Plaintiff to become a victim of

Jones.”

. The second duty, which Bryant maintains that the Government assumed after

she reported Jones’s behavior, was to “take action to protect Plaintiff from further assaults,

harassment, and stalking by Jones” in light of “[t]he VA’s knowledge . . . that Jones had

specifically targeted Plaintiff . . . .”

.

Although it contains some of the same language as Count I, Count II largely centers

around the Government’s negligent training, hiring, supervision, and retention of Jones.

¶¶ 54–66. Count III also boils down to a negligent-supervision and -retention claim.

¶¶ 67–

71 (focusing on “inherent risk and great danger associated with retaining Jones as an employee”

and “fail[ure] . . . to discipline and/or terminate Jones”) (emphasis added).

The Government opposes the Motion to Amend, positing that the proposed counts cannot

proceed as a matter of law. See ECF No. 16 (Def. Reply) at 4–7.

3 II. Legal Standard

A plaintiff may amend her complaint once as a matter of course within 21 days of serving

it or within 21 days of the filing of a responsive pleading. See Fed. R. Civ. P. 15(a)(1).

Otherwise, she must seek consent from the defendant or leave from the court. The latter “should

[be] freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether

to grant leave to file an amended complaint, courts may consider “undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc.” Foman v. Davis,

(1962). In this

Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.”

Firestone v. Firestone,

(D.C. Cir. 1996). Under Rule 15, furthermore, “the

non-movant generally carries the burden in persuading the court to deny leave to amend.”

Nwachukwu v. Karl,

(D.D.C. 2004).

It is clear, however, that amendment should not be permitted if it would be futile. In

other words, if the amendment is facially infirm, courts need not grant leave. See In re Interbank

Funding Corp. Sec. Litig.,

(D.C. Cir. 2010) (“[A] district court may properly

deny a motion to amend if the amended pleading would not survive a motion to dismiss.”) (citing

Foman,

, for proposition that “‘futility of amendment’ is permissible justification

for denying Rule 15(a) motion”); James Madison Ltd. v. Ludwig,

(D.C. Cir.

1996) (“Courts may deny a motion to amend a complaint as futile . . . if the proposed claim

would not survive a motion to dismiss.”).

III. Analysis

The Court first sets out the legal framework and then applies it to the new claims here.

4 A. Legal Framework

The parties agree that the Court lacks subject-matter jurisdiction over tort claims brought

against the United States insofar as the Government has not waived its sovereign immunity from

suit. Under the FTCA, the Government retains immunity for “any claim arising . . . out of” most

intentional torts committed by its employees. See

(h). The question here is

whether Bryant’s negligence claims against the Government “arise out of” the intentional torts

committed by Jones. This is not easily answered.

Initially interpreting the statute, a plurality of the Supreme Court urged a broad reading of

the “arise out of” provision, arguing that claims “that sound in negligence but stem from a

battery” remain barred. United States v. Shearer,

(1985) (plurality opinion). But

three years later, the Court backtracked. After discussing, but not deciding, whether negligence

that results in an intentional tort “arises out of” that tort, the Court settled on a narrower holding:

that “the negligence of other Government employees who allowed a foreseeable assault and

battery to occur may furnish a basis for Government liability that is entirely independent of [the

intentional tortfeasor’s] employment status.” Sheridan v. United States,

, 398–400,

401 (1988). In other words, Government negligence resulting in the commission of an

intentional tort by an employee does not “arise out of” that tort when the “basis for Government

liability” — that is, the Government’s duty — is completely unrelated to the fact that the

tortfeasor is an employee.

(“Indeed, in a case in which the employment status of the

assailant has nothing to do with the basis for imposing liability on the Government, it would

seem perverse to exonerate the Government because of the happenstance that [the intentional

tortfeasor] was on a federal payroll.”).

5 In the intervening decades, courts have interpreted Sheridan to mean “that negligence

claims related to a Government employee’s § 2680(h) intentional tort may proceed where the

negligence arises out of an independent, antecedent duty unrelated to the employment

relationship between the tortfeasor and the United States.” Bodin v. Vagshenian,

,

488–89 (5th Cir. 2006) (quoting Leleux v. United States,

(5th Cir. 1999))

(internal quotation marks omitted); see also Franklin v. United States,

(10th

Cir. 1993) (“[W]hen a negligence claim against the government . . . is in no way contingent on

the perpetrator’s federal employment status, i.e., when the government’s liability is based on its

breach of a duty owed the victim that is independent of its relationship, if any, to the perpetrator,

[§] 2680(h) does not bar recovery under the FTCA.”).

To illustrate, in Bembenista v. United States,

(D.C. Cir. 1989), the plaintiff

was a patient in a Government hospital where she was assaulted by an attending medical

technician.

. The D.C. Circuit found that her negligence suit against the Government

was not barred by § 2680(h) because the duty it breached under D.C. law was “to a hospital

patient to whom it owed a special obligation of protective care.” Id. at 497. This duty required

the Government to protect patients from harm by any actor — not only by its own employees —

so the negligence claim did not “arise out of” an assault committed by an employee within the

meaning of § 2680(h). Id. at 498. That is, the Government would have been liable even had

Bembenista been assaulted by someone who had wandered in off the street. Similarly, in

Stout v. United States, 721 F. App’x. 462 (6th Cir. 2018), the plaintiff alleged that he was

sexually assaulted by a nurse while a patient at a Government hospital. Id. at 464. The Sixth

Circuit found no bar to a negligence claim where Government employees failed to report the

6 assault, thus violating a duty under Ohio law to report felonies to law enforcement. Id. at 469–

70. There, too, the duty did not depend on the employment status of the assailant.

B. Application

Given that the description of the asserted duties here are intermingled among Plaintiff’s

three counts, the optimal course is to analyze Bryant’s claims by duty rather than by count. She

asserts the breach of two distinct duties.

The first was to “warn the Plaintiff of, and protect the Plaintiff from, known and

unknown dangers on its premises” by “notify[ing] Plaintiff or Plaintiff’s employer of the

numerous [previously] documented instances of assault, battery, harassment, and stalking by

Jones.” First Am. Compl., ¶¶ 44, 50, 56. Because Bryant frames this duty as independent of the

employment status of any such dangers — i.e., such a duty would apply equally to lead in the

drinking water or slippery floors — a negligence claim based on breach of this duty is not

necessarily barred by § 2680(h). The Court makes no finding as to whether Bryant’s claim runs

afoul of other parts of the FTCA or, indeed, whether such a duty exists under D.C. law at all.

Rather, because the duty does not relate to Jones’s employment by the Government, the Court

cannot say at present that dismissal under Rule 12(b)(1) would clearly be appropriate. This

claim in Count I, accordingly, may proceed.

The second duty allegedly breached was to “take action to protect Plaintiff from further

assaults, harassment, and stalking by Jones” by better supervising or disciplining him. Id., ¶¶ 45,

49, 59, 61–63, 70 (suggesting duty to “transfer, discipline, or terminate” Jones, “ensure Jones’[s]

behavior did not worsen,” “supervise” Jones, or “investigate, or in any way attempt to prevent

Jones from having unfettered access to Plaintiff in her workplace”). Bryant’s claims based on

breach of this duty are barred under the prevailing understanding of § 2680(h). Negligent-

7 supervision and -retention claims are not independent of the tortfeasor’s employment status;

indeed, they are inextricably linked with it. Were the tortfeasor not employed by the

Government, it would have no obligation to supervise him. As any claim regarding the

Government’s failure to supervise Jones in order to protect Bryant “arises out of” the intentional

torts he committed, the FTCA bars suit. See

(h). Courts across the country

have relied on this reasoning to uniformly reject similar claims. See Def. Reply at 6–7 (listing

cases); see also Hevener v. United States, No. 17-2577,

, at *3 (D.D.C. Jan. 30,

2019) (explaining why similar claims must be dismissed). This part of the proposed Count I thus

is deficient, as are Counts II and III.

In permitting amendment, the Court notes that the United States remains the sole

Defendant, as only that entity can be sued under the FTCA. See

(b)(1),

2679(a); Shipley v. Bureau of Prisons,

, 275 n.4 (D.D.C. 2010); Def. Reply

at 3–4. To the extent Plaintiff seeks to add the VA as a party, then, the Motion will be denied.

IV. Conclusion

For the reasons above, the Motion to Amend will be granted with respect to the pleaded

duty in Count I to warn Plaintiff of danger but it will otherwise be denied. A separate Order so

stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 8, 2020

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