Labor & Employment Law Daily No viable tort claims for Pentecostal worker forced by VA supervisor to tell parents about her romance
Monday, March 25, 2019

No viable tort claims for Pentecostal worker forced by VA supervisor to tell parents about her romance

By Lorene D. Park, J.D.

Forcing a Pentecostal subordinate to tell her religious parents about her intimate relationship was a “highly personal” wrong, so her privacy and emotional distress claims were not preempted by Title VII, but they failed anyway because the supervisor acted in the course of employment and was immune under the FTCA.

A Veterans Affairs (VA) supervisor’s actions in demanding that a Pentecostal employee call her parents on the spot and admit to intimate relationship details that violated her religion’s strict doctrine was a “highly personal” wrong and was not a “personnel action,” so neither Title VII nor the Civil Service Reform Act (CSRA) preempted her claims of invasion of privacy and intentional infliction of emotional distress. However, her tort claims were foreclosed anyway by the Federal Tort Claim Act (FTCA) because the attorney general’s office certified that the supervisor was acting in the course and scope of her employment, so she was immune from tort liability. Also refusing to imply a Bivens claim here, the federal district court in California granted the government’s partial motion to dismiss (Snipes v. Wilkie, March 20, 2019, Hixson, T.).

Pentecostal doctrine. The employee, an unmarried African-American woman, is a member of the Pentecostal Church. The doctrines of her church are strict, especially as applied to women, who are prohibited from cutting their hair or wearing pants, make-up, or nail polish. Women must wear dresses that fully cover their legs and arms, and they are categorically prohibited from having intimate, sexual, or romantic relationships before marriage. Because the employee is the daughter of a pastor, she believes these rules applied with additional force to her.

Employee’s mentor. The employee was hired as a program specialist at the Veterans Affairs Geriatric Research, Education and Clinical Center (GRECC). Her mentor, the longtime administrative officer for GRECC, boasted that she had powerful allies throughout the VA, that she had influence over confidential EEO investigations, and that she had influence with the employee union, where her brother was a “high ranking” member.

Mentor forces employee to “come clean.” The employee’s mentor also expressed her contempt for religious people, especially those who don’t follow religious beliefs they professed to hold. Though the employee had never confided to anyone at work that she was in a relationship, her mentor somehow learned she was having a romance with a man in violation of Pentecostal rules. The mentor summoned the employee to her office and insisted that the employee call her parents and “come clean.” The mentor insisted that, in her presence, the employee reveal intimate details of her romantic activities, even though the employee sobbed and begged her supervisor not to make her do it because it would destroy her relationship with her parents. She was spiritually, emotionally, and financially cut off from her parents and excommunicated from her church.

Ongoing harassment. Thereafter, the mentor continued to punish and harass the employee, including off-site at a national conference for Blacks in Government. The supervisor expressed anger that the employee was elected to a position in the organization and publicly berated and humiliated her, pressuring her to renounce that position and her membership or face further retaliation. Things also deteriorated at work, with the mentor ostracizing the employee, excluding her from meetings, denying training, removing responsibilities, micromanaging her, sabotaging her, and disparaging the employee to others. She also threatened to fire the employee and warned her not to go to the EEO or the union, where the mentor had powerful allies.

Lawsuit. After exhausting her administrative remedies, the employee filed suit, alleging multiple violations of Title VII (which were not at issue here) as well as invasion of privacy, intentional infliction of emotional distress, and Bivens claims for violations of her civil rights. The defendants moved to dismiss the latter three claims.

Highly personal torts not preempted by Title VII. As an initial matter, the court rejected the defendants’ argument that Title VII preempted the employee’s invasion of privacy and emotional distress claims. While it is well settled that Title VII is the exclusive remedy for claims of discrimination and retaliation arising out of federal employment, the Act does not preclude separate remedies for “highly personal violation[s] beyond the meaning of ‘discrimination.’”

Here, the employee claimed that forcing a young female subordinate to disclose a secret to her family was a “highly personal” wrong. Agreeing, the court found that the underlying conduct alleged here, which caused the employee to be ostracized from her family and church, was not necessarily driven by discrimination. The fact that the mentor’s conduct was also the basis for her Title VII claims didn’t change the fact that the conduct constituted more than discrimination.

Forced phone call wasn’t “personnel action” either. Nor did the CSRA preempt the tort claims. While the CSRA provides the only remedial scheme for federal employees to challenge a supervisor’s “prohibited personnel practice,” which term is broadly defined, there are limits to what could reasonably be considered a personnel action. Here, the court found that forcing a subordinate to call her family and disclose intimate details of her life did not fall within any category of “personnel action.”

Didn’t sufficiently plead invasion of privacy. Though her tort claims were not preempted, the employee’s invasion of privacy claim was dismissed anyway because she alleged that she, and not her supervisor, made the call to her parents. Moreover, she placed the call while knowing her supervisor was in the room. Thus, she did not have a reasonable expectation of privacy from the very people to whom she disclosed her private facts, and the disclosure was not made to the public, so she couldn’t establish her privacy-related claim under California law.

Emotional distress claim fails too. The employee’s claim for intentional infliction of emotional distress was also dismissed because she failed to plead conduct that satisfied the definition of “outrageous” under state law. Other than the phone call, the supervisor’s conduct consisted entirely of verbal threats, which was not enough to meet the “outrageous” element of the claim. And with respect the phone call, it was the employee who dialed the number and made the decision to disclose her romantic life to her parents. It was her disclosure, not the supervisor calling her into the office and speaking to her, that led the employee’s parents to cut her off. Accordingly, she could not establish the causation element of the claim either.

Precluded by FTCA. Even if the employee had sufficiently pleaded her tort claims, the VA and the supervisor had to be dismissed from the suit because federal law immunizes federal employees from negligent or wrongful acts or omissions while acting in the scope of employment. Here, the attorney general’s office certified that the supervisor was acting in the course and scope of her employment during the incidents underlying the tort claims, and the employee failed to prove otherwise by a preponderance of the evidence.

Bivens claim dismissed. In Bivens, the Supreme Court “recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” However, the Court has also made clear that expanding the Bivens remedy is “disfavored.” And, under Ninth Circuit precedent, courts considering whether to apply Bivens in a new context should determine whether special factors counsel hesitation.

Here, the employee had alternative remedies available to redress the alleged wrong in the form of Title VII, the CSRA, and the Privacy Act. The latter provides a remedy for “those injured by government officials’ disclosure of certain private information.” The employee’s complaint essentially affirmed that her claims fell under the Privacy Act in alleging that the VA, through supervisory personnel, permitted a pattern and practice of violating employees’ constitutional right to privacy. With this in mind, the court refused to imply a Bivens remedy in this context.

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