United States District Court, D. Arizona
HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE
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.
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
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 ¶
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).
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).
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
Civil Service Reform Act
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
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 ...