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August 24, 1992

CONNIE J. KENT, Plaintiff,
DAN HOWARD, Acting Secretary of the Navy; JAMES HOLBROOK, an individual; ED SEGISMAR, an individual; and TOM HUMPHREY, an individual, Defendants.

The opinion of the court was delivered by: JOHN S. RHOADES, SR.



 The plaintiff is a former facilities clerk at the Naval Air Station Miramar Navy Exchange in San Diego. She has filed a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1988) alleging harassment and discrimination. Defendants include the Secretary of the Navy, and three civilian employees. Two motions to dismiss are before the court; the first brought by the individual defendants, and the second brought by the U.S. government on behalf of the Secretary of the Navy.

 Motion to dismiss of defendants Holbrook, Segismar & Humphrey

 The individual named defendants challenge the complaint on two grounds: they claim first that Title VII is the exclusive remedy for the plaintiff, preempting her state law tort claims. Second, they urge that the Ninth Circuit position regarding a parallel statutory scheme, the Civil Service Reform Act of 1991, effectively preempts any state law claims against the individual defendants. For the following reasons, both grounds to dismiss fail.

 Title VII claims

 In support of the argument that Title VII provides the exclusive remedy for the plaintiff, the individual defendants cite Brown v. General Services Admin., 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976), and Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762 (9th Cir. 1991). These cases do not address the plaintiff's contention that since the defendants were acting outside of their authority, the state law tort claims should stand. In Otto v. Heckler, 781 F.2d 754 (9th Cir. 1986), the court addressed a case involving a federal employee who filed state law tort claims and Title VII claims alleging sexual harassment. The court noted that Brown, cited above, established Title VII as the exclusive remedy for discrimination in federal employment, but the court added that torts that are "highly personal violations beyond the meaning of discrimination" are separately actionable. Otto, 781 F.2d at 757, citing Stewart v. Thomas, 538 F. Supp. 891, 895 (D.D.C. 1982). The court found that the plaintiff's supervisor was not immune from tort liability because his actions of following, defaming, and harassing the plaintiff were not activities within the scope of his official duties. The court stated that whether the supervisor acted within the perimeter of his authority required a resolution of fact questions that should not be resolved at the pleading stage. Id. at 758. Otto stands for the proposition that Title VII does not provide the exclusive remedy where "highly personal violations" have occurred.

 In Arnold v. U.S., 816 F.2d 1306 (9th Cir. 1987), the plaintiff brought Title VII sex discrimination claims and state tort law claims against her federal employer. In reviewing whether the plaintiff could proceed with her state law claims, the court cited Otto, and noted that the supervisor's actions were beyond the scope of his authority. Therefore, he could not claim immunity and the state law claims were properly brought. The court ultimately dismissed the state law claims because the applicable statute of limitations had run. The court distinguished between the goals of Title VII actions, and the purpose of allowing other remedies:

 Although sexual harassment may be redressed through a claim brought under Title VII [citation omitted], the wrong underlying Arnold's Title VII claim is distinct from that underlying her state-law tort claims. In her state-law claims Arnold seeks to vindicate not her right to be free from discrimination in the workplace, but rather her right to be free from 'bodily or emotional injury caused by another person.' [citing Otto]. Indeed, it is precisely because these wrongs are different that Arnold's state-law claims are not precluded by Title VII.

 Id. at 1312-1313. Arnold supports the holding of Otto that Title VII remedies can be supplemented by state law causes of action. For these reasons, the defendants' citation to Vinieratos is unavailing; Vinieratos was decided after Otto and Arnold, but it fails to cite or distinguish either one, nor does it purport to be a thorough discussion of whether Title VII is the exclusive remedy for a plaintiff such as the one in the present case.

 The individual defendants reject this interpretation, arguing first that language of Otto requires a different factual predicate to justify alternative means of recovery. The Otto court cited such a proposition from its rulings in White v. General Services Admin., 652 F.2d 913 (9th Cir. 1981), and Nolan v. Cleland, 686 F.2d 806 (9th Cir. 1982), but it specifically interposed a new standard two paragraphs after those cited by the defendants: "The better view is that torts which constitute 'highly personal violations beyond the meaning of 'discrimination' [are] separately actionable.' [citation omitted] We reaffirm our holdings in White and Nolan that Title VII does not preclude all other claims for relief. . . ." Otto, 781 F.2d at 756-57. The defendants err in arguing that the circumstance of the same factual history preclude state law tort recovery; rather, as the Arnold opinion makes clear, the plaintiff is free to pursue state law relief where the violation has gone beyond discrimination in the workplace and involved physical or emotional injury that is highly personal.

 Defendants cite Schweiker v. Chilicky, 487 U.S. 412, 101 L. Ed. 2d 370, 108 S. Ct. 2460 (1988), for the proposition that there is no meaningful distinction between seeking relief for workplace discrimination and seeking relief for the personal injury. In Chilicky, the Supreme Court held that where Congress has designed a program with adequate remedial measures for constitutional violations, Bivens actions should not be implied. *fn1" Chilicky involved a Bivens action brought by Social Security benefit recipients who were wrongfully denied benefits for a period of time. The Court found that the continuing disability review procedures of the Social Security Act provided adequate measures of relief for the appellants. See also, Kotarski v. Cooper, 866 F.2d 311 (9th Cir. 1989). Chilicky is distinguishable from the present case; the defendants have not shown that Title VII provides adequate remedies to compensate the plaintiff for her injuries, and the injuries in Chilicky, which were purely monetary, are distinguishable from the injuries in this case, which were physical and emotional damages resulting from the alleged acts of harassment.

 The defendants also claim that the plaintiff is incorrect in asserting that Title VII is not the exclusive remedy when the defendants are acting outside of the scope of their duties. They claim that the scope of duties is relevant only to a claim of immunity. As the review of Otto and Arnold above indicates, the courts review the scope of the alleged wrongdoers' authority as a part of their analysis to determine whether the state law claims can proceed. The court in Otto specifically noted that in determining whether the state law claims can proceed, the court must recognize that the exact perimeter of authority is a question of fact that is not ideally determined at the pleading stage. Accord, Wood v. U.S., 956 F.2d 7, 12 (1st Cir. 1992) (reh'g pending) ("It would be an unusual job, to say the least, if sexual harassment and assault and battery were included in the scope of Major Owens' job description. . . . The appropriate forum for determining the truth of Ms. Wood's allegations vis-a-vis Major Owens' denial is the trial on the merits."). The district court in Wood analysed the case law and concluded that Title VII did not preclude state law claims when the government agents were acting outside of the scope of their authority. The court agreed with the District Court for the District of Columbia, which concluded that an interpretation that Brown v. General Services Admin., 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976), did not affect the availability of state tort remedies was "supported by the deference Title VII accords state laws barring employment discrimination." Wood v. U.S., 760 F. Supp. 952, 957 (D. Mass. 1991), quoting, Epps v. Ripley, 30 Fair Empl. Prac. Cas. (BNA) 1632, 1982 WL 514 (D.D.C. 1982); accord, Martin v. Merriday, 706 F. Supp. 42, 46 (N.D.Ga. 1989) ("There is substantial authority allowing a plaintiff to sue both for sexual harassment under Title VII and for tortious conduct under state law.").

 A consideration of these cases and the briefs by the parties compels the conclusion that the Ninth Circuit looks to the degree of intrusion; if state law claims are raised in order to vindicate personal injuries that extend beyond discrimination in the workplace, then Title VII does not provide the exclusive remedy. The plaintiff has made a prima facie showing of injuries that extend beyond workplace discrimination, and the individual ...

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