                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0452n.06
                             Filed: June 29, 2006

                                             No. 04-6391

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

NANCY ROBERTS,                                             )
                                                           )         ON APPEAL FROM THE
       Plaintiff-Appellant,                                )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE EASTERN
v.                                                         )         DISTRICT OF TENNESSEE
                                                           )
UNITED STATES OF AMERICA,                                  )                            OPINION
                                                           )
       Defendant-Appellee.                                 )


BEFORE:         SILER, CLAY, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Roberts is a Certified Registered Nurse Anesthetist who

worked in the operating room of a Department of Veterans Affairs (“VA”) hospital in Tennessee.

She sued five of her federal co-workers in state court, alleging various state tort claims against them.

The Government removed the action to federal court. Over Roberts’s challenge, the district court

substituted the Government as the party defendant because it found that the individual defendants1

were acting within the scope of their employment and were therefore immune from suit under the

Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the

“Westfall Act”). On the Government’s motion, the district court then dismissed the suit for lack of

subject-matter jurisdiction because Roberts did not exhaust her administrative remedies.




1
 For convenience, we refer to the five co-workers originally sued in state court as the “individual
defendants.”
No. 04-6391
Roberts v. United States

       On appeal, Roberts argues that the individual defendants acted with personal malice and not

with an intent “to serve the master.” Thus, she maintains, they acted outside the scope of their

employment and the Government should not have been substituted as the party defendant. We

disagree, and affirm judgment in favor of the Government for the reasons provided below.



                                                I.

       In 2001, Roberts initiated an EEO action for discrimination and retaliation against the VA

based, in part, on several comments purportedly made by Lori Hagen, a nurse supervisor in the

hospital’s operating room. After being informed of the EEO charge and Roberts’s allegations,

Hagen immediately informed her staff that the charge was the “last straw” and that she was

resigning her position in the operating room as a result. There is evidence in the record, however,

that Hagen had decided several days earlier to accept a transfer to another position.

       Shortly after Hagen made her statement, the other individual defendants drafted and

circulated three different petitions. The petitions stated that the signatories supported Hagen,

accused Roberts of creating a stressful, hostile work environment in the operating room, and

suggested that patient care would eventually degrade as a result of Roberts’s behavior. Memoranda

alleging problems caused by Roberts were also submitted to a fact-finding board.

       Hagen did not sign or circulate any of the petitions, or submit memoranda to the fact-finding

board. In Roberts’s view, however, it was Hagen’s statement – her “big lie” – that instigated her

co-workers’ actions.




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Roberts v. United States

        Roberts was removed from the operating room’s anesthesia unit. She subsequently worked

in the emergency room as a triage nurse and the gastroenterology department assisting with

colonoscopies. She has not returned to work in the anesthesia unit.



                                                  II.

       In November 2002, Roberts sued the individual defendants, alleging state tort claims of

outrageous or egregious conduct, intentional infliction of emotional distress, tortious interference

with her employment relationship, tortious inducement to breach her employment contract, libel,

professional disparagement, and interference with her professional career.        Upon removing the

lawsuit to federal court, the Government certified that the employees were acting within the scope

of their employment when they purportedly committed the tortious acts. Based on the Government’s

certification, the district court substituted it as party defendant. The Government then moved to

dismiss the suit for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1) because Roberts

failed to exhaust her administrative remedies prior to filing suit.

       Roberts challenged the certification, arguing that the individual defendants were acting solely

out of personal malice. The court permitted Roberts to engage in limited discovery on the scope-of-

employment issue. Upon close of discovery, the district court concluded that the individual

defendants were acting within the scope of their employment, as defined by Tennessee law. Because

there was no dispute that Roberts had not exhausted her administrative remedies, the district court

dismissed the case without prejudice.




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                                                 III.

A.     The Westfall Act

       The primary issue on appeal is whether the individual defendants were acting within the

scope of their employment under Tennessee law. The Westfall Act immunizes federal employees

from liability for torts they commit when acting within the scope of their federal employment. 28

U.S.C. § 2679(b)(1). When a federal employee acts within the scope of her employment and

commits a tort, any relief for that tort must be sought against the Government under the Federal Tort

Claims Act, 28 U.S.C. §§ 2671-2680 (the “FTCA”). The obverse, of course, is that the Westfall Act

does not immunize federal employees for torts they commit outside the scope of their federal

employment; liability for such torts can lie with the individual tortfeasors under state law. Whether

a federal employee acts within the scope of her employment is determined by applying the law of

the state in which the alleged tort took place, here Tennessee. Singleton v. United States, 277 F.3d

864, 870 (6th Cir. 2002).

       In response to the filing of a lawsuit in state court alleging tort claims against a federal

employee, the Government can certify that the employee acted within the scope of his employment

and remove the action to federal court. 28 U.S.C. § 2679(d)(2). The Government can then move to

substitute itself as defendant in place of the targeted federal employee. Id. While the Government’s

certification is conclusive for the purpose of removal, id., it is subject to challenge for the purpose

of substitution, Singleton, 277 F.3d at 870. Thus, a plaintiff can challenge the Government’s scope-

of-employment certification in an effort to have the federal employee reinstated as a party defendant.

If successful, the court must reinstate the federal employee as defendant and assess the claims under

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Roberts v. United States

state tort law. Id. at 870 n.5. If unsuccessful, the Government remains the defendant and the case

proceeds under the FTCA. Id.; 28 U.S.C. § 2679(d)(1).

       A plaintiff challenging the Government’s certification has the burden of proof:

       We have held that “The Attorney General’s certification provides prima facie
       evidence that the employee was acting within the scope of employment.” RMI
       [Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir. 1996).]
       Thus, to contest the propriety of substitution, the plaintiff must produce evidence that
       demonstrates that the employee was not acting in the scope of employment. If the
       plaintiff produces such evidence, the government must then produce evidentiary
       support for its certification.

Singleton, 277 F.3d at 870-71.



B.     Standard of Review

       In general, we review de novo a district court’s grant of a motion to dismiss for lack of

subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Coyne v. Am. Tobacco Co., 183 F.3d 488,

492 (6th Cir. 1999). “Whether an employee was acting within the scope of his employment is a

question of law, not fact . . . .” Singleton, 277 F.3d at 870 (quoting RMI, 78 F.3d at 1143). The

district court, however, must resolve any factual questions “necessary to its decision before entering

its order.” Id. (quoting Arthur v. United States, 45 F.3d 292, 296 (9th Cir. 1995)). We review the

court’s factual findings for clear error, Dixon v. Ashcroft, 392 F.3d 212, 216-17 (6th Cir. 2004), and

its application of the law to those factual findings de novo, Singleton, 277 F.3d at 870.



C.     Scope of Employment Under Tennessee Law




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Roberts v. United States

       Under Tennessee law, an employee acts within the scope of his employment if the

employee’s conduct meets the test set forth in the Restatement (Second) of Agency § 228 (1957):

       (1) Conduct of a servant is within the scope of employment if, but only if:

               (a) it is of the kind he is employed to perform;

               (b) it occurs substantially within the authorized time and space limits;

               (c) it is actuated, at least in part, by a purpose to serve the master; and

               (d) if force is intentionally used by the servant against another, the
               use of force is not unexpectable by the master.

       (2) Conduct of a servant is not within the scope of employment if it is different in
       kind from that authorized, far beyond the authorized time and space limits, or too
       little actuated by a purpose to serve the master.

Tenn. Farmers Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d 933, 938 (Tenn. Ct. App. 1992).

       Roberts argues on appeal that the district court erred by not examining closely the motives

of the individual defendants in determining whether their actions were “actuated, at least in part, by

a purpose to serve the master.” She maintains that they maligned and disparaged her, and that their

personal motivations took their actions outside the scope of their employment under Tennessee law.

Had she been permitted additional discovery, she believes that her evidence of personal bias and

motivation would have been even stronger.

       The district court properly focused on the individual defendants’ actions and the

circumstances of those actions. While evidence of intent can be relevant to whether an employee’s




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Roberts v. United States

actions were “actuated . . . by a purpose to serve the master,”2 Tennessee law generally measures

the scope of employment not by “the motive of the servant, but whether that which he did was

something his employment contemplated, and something which if he should do it lawfully he might

do in his employer’s name.” Hall Grocery Co. v. Wall, 13 Tenn. App. 203, 208 (1930) (quoting

Deihl & Lord v. Ottenville, 82 Tenn. 191 (1884)). It is clear that under federal case law, an

employee may engage in conduct that is not condoned by the employer – even in violation of the

employer’s policies – and still be within the scope of his or her employment. See Arbour v. Jenkins,

903 F.2d 416, 422 (6th Cir. 1990). Under Tennessee law, an employee can act within the scope of

his employment even when committing wanton or willful torts against another:

        The rule recognized in all the recent cases . . . is that for the acts of the servant,
        within the general scope of his employment, while engaged in his master’s business,
        and done with a view to the furtherance of that business and the master’s interest, the
        master will be responsible, whether the act be done negligently, wantonly, or even
        willfully. In general terms, if the servant misconducts himself in the course of his
        employment, his acts are the acts of the master, who must answer for them.

Anderson v. Covert, 245 S.W.2d 770, 771-72 (Tenn. 1952) (quoting Mott v. Consumers’ Ice Co.,

73 N.Y. 543, 547 (1878)). See also Johnson v. Chapman, 327 F. Supp. 2d 895, 899 (E.D. Tenn.

2004) (“Plaintiff’s allegations that [the individual defendant] acted with vindictiveness and malice

are not enough to overcome substitution where, even if true, [the employee’s] actions appear to have

been taken within her authority as a federal employee during the course of her employment.”). This

is consistent with the standards of several other states in our circuit. See, e.g., RMI, 78 F.3d at 1143-


2
 Moreover, § 235 of the Restatement (Second) of Agency provides that “An act of a servant is not
within the scope of employment if it is done with no intention to perform it as a part of or incidental
to a service on account of which he is employed.”

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No. 04-6391
Roberts v. United States

44 (finding that, under Ohio law, the “bad or personal motive” of the alleged wrongdoer is of little

import on whether the employee was acting within the scope of employment); Woods v. McGuire,

954 F.2d 388, 390 (6th Cir. 1992) (“Under Ohio law, employees, even though acting intentionally

and maliciously, are within the scope of employment if acting in the course of employment and

within their authority.”); Arbour, 903 F.2d at 422 (explaining that, under Michigan law, “an

employee’s actions may be within the scope of his or her employment even if the actions constitute

intentional torts”).

        Roberts tries to distinguish this line of cases by arguing that while supervisors might act

within the scope of their employment even when they malign, harass, or otherwise mistreat the

employees they supervise, nonsupervisory co-workers act outside their scope when they engage in

similar behavior. She cites no case law to support this distinction. As the Government points out,

there is nothing in the Westfall Act that limits immunity to supervisors. In fact, we have previously

found a federal employee immune from a co-worker’s state tort action for, among other things,

intentional infliction of emotion distress. Woods, 954 F.2d at 389-91 (affirming immunity under

Ohio law of non-supervisor medical officer who purportedly made false allegations against the

plaintiff).

        Thus, in determining whether the individual defendants were acting within their scope of

employment, we look to whether their actions were “actuated, at least in part, by a purpose to serve

the master.” Without question, Roberts’s presence in the surgical unit generated turmoil and

hostility, regardless of who was at fault. While patient care might not have suffered yet, such a

result would be expected at some point in the future if the situation had not been resolved in some

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No. 04-6391
Roberts v. United States

manner. Roberts acknowledges that the turmoil and hostile environment were not in furtherance

of the VA’s interests. It is apparent that the individual defendants were acting within the scope of

their employment when they sought to have her removed from the unit.

       As for Hagen’s initial statement, she made it immediately after talking with a counselor

about Roberts’s intention to file an EEO charge. She made it at work, to her co-workers. The

substance of her comment involved her work – i.e., her transfer to another position within the VA.

Thus, the comment was reasonably incidental to her employment. See Tenn. Farmers, 840 S.W.2d

at 938 (“To be within the scope of employment, conduct must be . . . incidental to the conduct

authorized.” (quoting Restatement (Second) of Agency § 229)).

       Accordingly, even if Roberts’s allegations of personal bias and malice are true, they are not

sufficient to counter the evidence provided by the individual defendants that their actions were

“actuated, at least in part, by a purpose to serve” the VA hospital. As the individual defendants

were acting within the scope of their employment, the Westfall Act requires that the Government

be substituted as defendant, and Roberts’s only recourse for her tort claims is under the FTCA.3

       There is no question that Roberts did not exhaust her administrative remedies as required by

the FTCA, 28 U.S.C. § 2675(a). Therefore, the district court properly dismissed her lawsuit without


3
 Roberts claims that the district court erred when it permitted only limited discovery. Upon review
of the record, we find no error. The court allowed Roberts to engage in discovery on the pertinent
issue, including taking the depositions of four of the five individual defendants. The court’s
discovery order was well within its discretion. See Woods, 954 F.2d at 391 (finding no abuse of
discretion where the plaintiff had an opportunity to depose two of the six defendants and had
sufficient time to engage in other discovery); see also Schrob v. Catterson, 967 F.2d 929, 936 (3d
Cir. 1992) (explaining that any discovery permitted should be “circumscribed as narrowly as
possible” when a scope-of-employment certificate is challenged).

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Roberts v. United States

prejudice for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Singleton, 277 F.3d

at 872-73.4



                                                 IV.

       For the reasons stated above, we AFFIRM the district court’s judgment of dismissal.




4
 Although not specifically raised by the Government, we note the following: The FTCA generally
waives the Government’s sovereign immunity for state tort actions. 28 U.S.C. § 2674. It has not,
however, waived its sovereign immunity to several classes of torts, including libel, slander,
misrepresentation, deceit, and interference with contract rights. Id. § 2680(h). This exemption in
the FTCA, when read next to the Westfall Act’s substitution provision, creates an apparent inequity:
if the individual tortfeasor acted within the scope of employment when committing one of the
exempted torts, then the Government must still be substituted and the individual tortfeasor remains
immune from liability. Maron v. United States, 126 F.3d 317, 321-22 (4th Cir. 1997). The apparent
unfairness of this result was noted by the Supreme Court a number of years ago: “. . . Congress
recognized that the required substitution of the United States as the defendant in tort suits against
Government employees would sometimes foreclose a tort plaintiff’s recovery altogether.” United
States v. Smith, 499 U.S. 160, 166 (1991).
        Roberts states on appeal that “[i]t appears that all of [her] state law intentional tort claims
derive from, or akin to” the exempted torts. Appellant’s Brief at 53 (emphasis added); see also id.
at 52. Thus, given this admission, it follows that even if she were somehow to exhaust her
administrative remedies, she would likely be unable to recover damages from the Government.
Because the Government did not, however, move to dismiss her lawsuit for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), the issue of whether her lawsuit should have been dismissed with
prejudice is not before us.

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