United States District Court, D. Vermont
BRIAN M. BOWLES, Plaintiff,
ROSI O'CONNELL, DENNIS O'CONNELL, and UNITED STATES OF AMERICA, Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S RENEWED MOTION TO STRIKE CERTIFICATION AND GRANTING IN PART AND DENYING IN PART DEFENDANT UNITED STATES OF AMERICA'S CROSS-MOTION TO DISMISS (Docs. 54, 59)
Christina Reiss, Chief Judge United States District Court
Plaintiff Brian M. Bowles brings this action against Defendants Rosi O'Connell ("Ms. O'Connell"), Dennis O'Connell, and the United States of America ("the government") for defamation, tortious interference with contract, and tortious interference with prospective contractual relations (Doc. 30). Pending before the court is Plaintiffs renewed motion to strike the Westfall Act certifications that Ms. O'Connell acted within the scope of her employment at the United States Postal Service (the "USPS") on several occasions that relate to Plaintiffs claims (Doc. 54). The government opposes the motion and seeks dismissal of the claims against it on the basis of sovereign immunity (Doc. 59). After oral argument on December 18, 2015, the court took the pending motions under advisement.
Plaintiff is represented by David E. Bond, Esq. Defendants Rosi O'Connell and Dennis O'Connell are represented by John J. Boylan, III, Esq. and John D. Willey, Jr., Esq. The government is represented by Assistant United States Attorney Owen C.J. Foster.
I. The Amended Complaint.
From March 7, 2009 until April 27, 2012, Plaintiff worked for the USPS as a contract postal worker. Pursuant to his contract, he picked up and delivered mail to customers served by the West Hartford, Hartford, North Pomfret, and Barnard, Vermont Post Offices. Plaintiff interacted regularly with the postmasters at each of those facilities. During the term of his contract with the USPS, Ms. O'Connell served as the postmaster for the West Hartford Post Office, and later, for the Hartford Post Office.
In 2010, at Ms. O'Connell's request, Plaintiff included Trafalgar Square Bookstore on his pick-up and delivery routes. Plaintiffs trips to Trafalgar Square Bookstore required him to drive further and transport more mail than his contract otherwise required. Plaintiff sought compensation for this additional work, and submitted written payment requests to Ms. O'Connell. Plaintiff alleges that because Ms. O'Connell did not know how to process the payment requests, he did not receive payment. In an effort to receive the payment he was due, Plaintiff submitted his requests to Ms. O'Connell's supervisor, and was paid.
Plaintiff alleges that Ms. O'Connell "reacted very negatively to [Plaintiff] taking the matter over her head." (Doc. 30 at 3, ¶ 9.) On December 1, 2010, she allegedly "brandished scissors in [Plaintiffs] face, yelled that he was refusing to do work, and attempted to order him out of the post office." Id. Plaintiff reported this incident to Ms. O'Connell's supervisors, which, he alleges, "seemed to further inflame Ms. O'Connell." Id. On January 7, 2011, Plaintiff claims Ms. O'Connell "falsely reported" to postal supervisors that Plaintiff "had been belligerent with her, causing her to fear for her safety." Id. at 3, ¶10. On January 19, 2011, she also allegedly "falsely reported to a fellow postmaster and police" that Plaintiff had attempted to assault her. Id. Plaintiff asserts that a USPS investigation confirmed that Ms. O'Connell's January 19, 2011 report was false. He claims Ms. O'Connell "sought to make life difficult for [him] in other ways, " including by coordinating an unwarranted search of his vehicle, denying him access to postal facilities, and mishandling his mail. Id. at 3, ¶ 11.
On February 8, 2011, USPS supervisors convened a meeting with Plaintiff and Ms. O'Connell. The supervisors did not determine the veracity of Plaintiff s or Ms. O'Connell's accounts of the alleged events, but purportedly warned that if they remained unable to work together, one of them would be terminated. Thereafter, Plaintiff alleges that he and Ms. O'Connell were able to work amicably together for approximately one year.
In early-2012, Plaintiff asserts that he stopped receiving payments for his deliveries to and from Trafalgar Square Bookstore. As a result, he refused to include Trafalgar Square Bookstore on his route without payment. "In response, Ms. O'Connell resumed her campaign of harassment, in an apparent effort to get [Plaintiff] fired." Id. at 4, ¶ 14. She allegedly repeatedly "ticketed" Plaintiff for supposed violations of USPS procedures, including his failure to use a barcode scanner. Id. at 4, ¶ 15. However, Plaintiff asserts that he was unable to use a barcode scanner because Ms. O'Connell had failed to issue him with the identification code necessary to activate the device, although it was her responsibility to do so. On March 23, 2012, Ms. O'Connell called the police and allegedly falsely reported that Plaintiff was making threats against her. The police investigated her report, but did not take any action against Plaintiff. In early-April 2012, Ms. O'Connell allegedly falsely reported to USPS supervisors that Plaintiff had called her a "'fucking Spanish bitch.'" Id. at 4, ¶ 17.
On April 20, 2012, USPS supervisors convened another meeting to discuss the ongoing issues between Plaintiff and Ms. O'Connell. During this meeting, Plaintiff claims it became clear that Ms. O'Connell had not issued Plaintiff with an identification code because she did not know how to issue it. He alleges that the USPS supervisors at the meeting issued him a code within minutes. Plaintiff claims that by repeatedly exposing Ms. O'Connell's incompetence, "he made [her] look like a fool[, ] . .. [and she] despised [Plaintiff] for this, and contrived a way to get him fired." Id. at 4-5, ¶ 19.
On the morning of April 26, 2012, Plaintiff arrived at the Hartford Post Office. He entered through the back door, and encountered Ms. O'Connell, who allegedly demanded that he hand over his identification badge. Plaintiff "did not trust her enough to simply hand  over [his badge] to her[, ]" and he refused to comply. Id. at 5, ¶ 20. He collected the mail and continued on his usual route. After arriving at the North Pomfret Post Office, Plaintiff called Ms. O'Connell's supervisor, Salvatore Vitagliano, to report the incident. Mr. Vitagliano did not answer his phone, but returned Plaintiffs call shortly thereafter, and allegedly "ominously stated, 'Rosi is no longer here.'" Id. at 5, ¶ 22. Mr. Vitagliano asked Plaintiff to return to the Hartford Post Office, which Plaintiff refused to do because he feared that "he would be subjected to adverse employment action were he to return to Hartford[.]" Id. at 5, ¶ 23. Plaintiff subsequently called Rick Denihan, the Human Resources manager responsible for administering his contract to speak about "the constant harassment he was being subjected to by Ms. O'Connell and [to] inform Mr. Denihan that he could not work under these conditions." Id. Plaintiff did not complete his route that day.
Plaintiff later learned that, on the morning of April 26, 2012, Ms. O'Connell had allegedly falsely claimed that he had assaulted her by repeatedly striking her on the head with his scanner. The scanner weighs approximately five pounds, and is made of hard plastic and metal. Ms. O'Connell was taken to the emergency room, where Plaintiff alleges that, "[notwithstanding a sustained performance of feigned hysteria, the examining physicians could detect no sign of actual injury anywhere on Ms. O'Connell's person." Id. at 6, ¶ 25.
Plaintiffs employment with the USPS was terminated. He was also charged criminally with an assault, and faced up to one year in prison. He alleges that prior to the criminal trial, Ms. O'Connell spoke with Carol Haehnel, a former USPS customer and potential juror who was excused, regarding the alleged April 26, 2012 incident. In December 2013, a jury acquitted Plaintiff of the alleged assault against Ms. O'Connell.
On October 11, 2012, Ms. O'Connell claims that she was assaulted on her front porch. When reporting this incident to the police, Ms. O'Connell accused Plaintiff of perpetrating the assault. The police obtained a warrant and searched Plaintiffs home, "looking for a ski mask, a certain brand of sneakers, and a blunt object[, ]" but according to Plaintiff, "[t]hey came up empty handed." Id. at 6, ¶ 29.
In his Amended Complaint, Plaintiff alleges counts of defamation, tortious interference with contract, and tortious interference with prospective contractual relations. Plaintiff claims that Ms. O'Connell repeatedly made false and defamatory statements regarding the assaults and Plaintiffs role therein. Plaintiff further alleges that Ms. O'Connell's husband, Defendant Dennis O'Connell, assisted her in crafting and disseminating these false and defamatory accusations. As a result of their actions, Plaintiff asserts that he was terminated from his USPS employment, was precluded from entering into any further contractual relationship with the USPS, was charged criminally, and suffered reputational damage.
II. Procedural Background.
On March 1, 2014, Plaintiff filed this action against Ms. O'Connell and Defendant Dennis O'Connell in the Vermont Superior Court, County of Windsor, Civil Unit. On August 8, 2014, the United States Attorney certified that Ms. O'Connell was acting within the scope of her employment at the USPS when she made each allegedly false and defamatory statement regarding Plaintiff. The government removed this case to the district of Vermont, and sought to substitute itself for Ms. O'Connell as a defendant, pursuant to 28 U.S.C. § 2679(d)(2).
Thereafter, the government moved to dismiss the claims against it on the basis of sovereign immunity. On August 21, 2014, Plaintiff opposed the government's motion to dismiss, and moved to strike its Westfall Act certification. On October 29, 2014, after oral argument on these issues, the court deferred judgment and granted Plaintiff leave to file an Amended Complaint, which Plaintiff filed within thirty days. The government answered the Amended Complaint, but did not include a renewed Westfall Act certification therein or as a separate filing.
On February 17, 2015, the court held a discovery hearing, during which the government withdrew its motion to dismiss. The court subsequently ordered the parties to conduct discovery limited to the issue of whether Ms. O'Connell's "allegedly defamatory statements were made in the course of her employment." (Doc. 43 at 1.) Plaintiffs motion to strike the prior certification was denied as moot.
On March 4, 2015, and supplemented on March 17, 2015, the government filed Westfall Act certifications asserting that certain statements Ms. O'Connell made were within the scope of her employment, and concluding that others were not (the "renewed certifications"). In response, Plaintiff filed the pending motion to strike the renewed certifications. The government opposes the motion to strike and cross-moves to dismiss the claims against it on the grounds of sovereign immunity.
III. The Renewed Certifications.
The renewed certifications assert that all of the statements that Ms. O'Connell made on April 26, 2012, the date of the alleged assault, occurred within the scope of her employment. These statements include remarks that she allegedly made to Shelly Bowley, the USPS customer who found her after the alleged attack; Officer Mark McComas, the responding police officer; the EMS crew who responded to the scene and transported Plaintiff to the emergency room; the physician who treated her in the emergency room; the police department; and USPS supervisory personnel and Postal Inspectors. The renewed certifications also assert that Ms. O'Connell's alleged statements to the healthcare providers who treated her during follow-up visits occurred within the scope of her employment. In addition, the renewed certifications specify that Ms. O'Connell's statements to Mark Davis, a newspaper reporter for the Valley News, which were published in an article on November 17, 2012, occurred within the scope of her employment.
The renewed certifications further state that Ms. O'Connell "was acting within the scope of her employment with the [USPS] with regard to all allegations in the Amended Complaint" that were not otherwise addressed. (Doc. 50 at 1.) This general certification includes, among other things, a claim that Ms. O'Connell was acting within the scope of her employment when she made the alleged ...