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Kearney v. United States

United States District Court, D. Arizona

June 29, 2018

Michelle Kearney, Plaintiff,
v.
United States of America, Defendant.

          ORDER

          HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant United States of America's Motion to Dismiss. (Doc. 16). The Court grants the motion in part and denies the motion in part.

         BACKGROUND

         Plaintiff Michelle Kearney previously worked for the United States Department of the Interior in the Grand Canyon National Park (“GRCA”). (Doc. 1 ¶ 5). From 2007 to 2012, she held various positions with the Grand Canyon River District, where she was the only female employee. (Doc. 1 ¶¶ 5-6). Ms. Kearney reported several instances of sexual harassment during her employment. One co-worker watched her change clothes in October 2010. (Doc. 1 ¶ 18). In April 2011, the same co-worker repeatedly invited her to bathe with him in the river, attempted to be naked in a boat with her, and exposed his genitals to her when she refused his invitations. (Doc. 1 ¶¶ 16-17). Ms. Kearney told supervisors about the misconduct, but no action was taken to resolve the problem. (Doc. 1 ¶¶ 19-20). To escape the harassment, she resigned from her permanent position at the Grand Canyon River District in September 2012 and accepted work as an intermittent biological technician in the fisheries department. (Doc. 1 ¶¶ 21-23).

         On June 6, 2013, Ms. Kearney documented the harassment in a twenty-nine page letter, which she sent to the GRCA Chief Ranger on June 6, 2013. (Doc. 1 ¶ 15). In October 2013, while Ms. Kearney was working as a biological technician, she learned that employees of the GRCA Trail Crew (another group with a history of sexual misconduct) knew about her letter to the Chief Ranger. (Doc. 1 ¶¶ 23-24). Ms. Kearney told her supervisor that the Trail Crew knew about her letter, and her supervisor reported the incident to GRCA Deputy Superintendent Diane Chalfant. (Doc. 1 ¶ 27). GRCA leadership failed to address either the sexual harassment outlined in Ms. Kearney's letter or the letter's disclosure to other employees. (Doc. 1 ¶ 28).

         In September 2014, Ms. Kearny joined thirteen former and current employees of the GRCA River District in sending a letter to the Secretary of the Interior. The letter included Ms. Kearney's twenty-nine page description of harassment as an attachment. (Doc. 1 ¶¶ 56-57). In response to this letter, the Office of Inspector General conducted an investigation of misconduct at GRCA and published a subsequent report on January 12, 2016. (Doc. 1 ¶ 59). Ms. Kearney learned from this report that Deputy Superintendent Diane Chalfant had disclosed Ms. Kearney's personal contact information to the alleged harassers. (Doc. 1 ¶ 30).

         The release of Ms. Kearney's personal contact information to her perpetrators has caused her “to live in fear of retaliation.” (Doc. 1 ¶ 93). After the Department of the Interior rejected her claim for relief in January 2017, (doc. 1 ¶ 101), Ms. Kearney filed this Complaint on July 19, 2017. (Doc. 1). The Complaint asserts jurisdiction pursuant to the Federal Tort Claims Act (“FTCA”) which makes the United States liable for torts as if it were a private entity. 28 U.S.C. § 2674. Ms. Kearney's complaint includes four counts, all brought under Arizona state law. Count One alleges a claim for negligence due to Diane Chalfant's disclosure of Ms. Kearney's personal information. (Doc. 1 at 17). Count Two alleges a claim for negligent hiring, retention, or supervision. (Doc. 1 at 19). It generally alleges that various GRCA managers and supervisors failed to properly oversee complaints about sexual harassment. (Doc. 1 at 19-20). Count Three alleges a claim for invasion of privacy due to Diane Chalfant's disclosure of Ms. Kearney's personal information. (Doc. 1 at 20). Count Four alleges a claim of intentional infliction of emotional distress due to Diane Chalfant's disclosure of Ms. Kearney's personal information. (Doc. 1 at 22). The United States moved to dismiss the Complaint for lack of jurisdiction due to preemption and for failure to state a claim due to the statute of limitations. (Doc. 16).

         DISCUSSION

         I. Legal Standard

         A. Rule 12(b)(1)

         Federal Rules of Civil Procedure 12(b)(1) allows a party to move to dismiss a complaint for lack of subject matter jurisdiction. “The party asserting jurisdiction has the burden of proving all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). Federal courts “possess only that power authorized by Constitution and statute, ” and therefore “[i]t is to be presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. See id.[1]

         II. Analysis

         A. Civil Service Reform Act

         The Defendant moves to dismiss Count Two for negligent hiring, retention, and supervision because it is preempted by the Civil Service Reform Act (“CSRA”). (Doc. 16 at 6).[2] The CSRA is a “remedial scheme through which federal employees can challenge their supervisors' ‘prohibited personnel practices.'” Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (quoting 5 U.S.C. § 2302). The CSRA preempts the FTCA because otherwise permitting FTCA claims to supplant the CSRA “would defeat Congress' purpose of creating ‘a single system of procedures and remedies, subject to judicial review.'” Mangano v. U.S., 529 F.3d 1243, 1246 (9th Cir. 2008) (quoting Rivera v. U.S., 924 F.2d 948, 951 (9th Cir. 1991)). “If the challenged conduct ...


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