                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 9, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    CINDY H. SANDOVAL,

                Plaintiff-Appellee,

    v.                                              Nos. 10-1518 & 10-1520
                                              (D.C. No. 1:09-CV-02434-REB-MJW)
    ANNA MARTINEZ-BARNISH,                                  (D. Colo.)

                Defendant-Appellant.


    UNITED STATES OF AMERICA,

                Interested Party-
                Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
Judges.



         Plaintiff Cindy Sandoval filed an action in state court against defendant

Anna Martinez-Barnish, alleging assault, battery, extreme and outrageous


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
conduct, and intentional interference with contractual relations. The allegations

arose out of an incident that occurred while Ms. Sandoval was a contract

employee for Navarro Research and Engineering, Inc. (“Navarro”). She was

assigned to process requests under the Freedom of Information Act (“FOIA”) at

the United States Department of Energy’s field office in Golden, Colorado

(“GFO”). Ms. Martinez-Barnish was the GFO’s Public Affairs Specialist and

FOIA/Privacy Act Officer at the time of the alleged incident. She was

responsible for Ms. Sandoval’s daily assignments and for overseeing

Ms. Sandoval’s work.

      After Ms. Sandoval filed her complaint, the United States removed the case

to federal court. 1 The government then certified that Ms. Martinez-Barnish was

acting within the scope of her employment when she committed the alleged torts

and moved to substitute the United States as sole defendant under the Westfall

Act, 28 U.S.C. § 2679. Ms. Sandoval filed a response to the motion to substitute,

arguing that it should be denied because Ms. Martinez-Barnish was not acting

within the scope of her employment at the time of the alleged torts. The

magistrate judge held a hearing on the motion and then entered a recommendation

that the motion be denied. The district court considered objections from the



1
      Ms. Sandoval initially included the Department of Energy (“DOE”) as a
defendant, but she later moved to voluntarily dismiss the DOE as a party and
amended her complaint to assert claims against Ms. Martinez-Barnish alone.

                                        -2-
United States and Ms. Martinez-Barnish and then entered an order adopting the

magistrate judge’s recommendation and denying the motion to substitute. The

government appealed from the denial of the motion to substitute (case no.

10-1518), as did Ms. Martinez-Barnish (case no. 10-1520). 2 Exercising our

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s decision. 3

                                Factual Background

      During the week of July 13, 2009, Ms. Sandoval reported to

Ms. Martinez-Barnish that she was being bitten by flying ants.

Ms. Martinez-Barnish reported this problem to her superior, Christopher Powers

and to the DOE. She also provided the DOE with a flying ant that she had

captured in a plastic bag.

      On the morning of July 21, 2009, Ms. Sandoval called

Ms. Martinez-Barnish from her work area and told her that she had received

additional flying ant bites and that the bites were red. Ms. Martinez-Barnish told

Human Resources management and the DOE facilities manager to move

Ms. Sandoval’s workspace. Ms. Martinez-Barnish then suggested to

Ms. Sandoval that she should go see a doctor and go home. Ms. Sandoval told


2
      The two appeals were consolidated for briefing purposes.
3
       The Supreme Court has explained that the district court’s denial of
certification and substitution under the Westfall Act is covered under the
collateral order doctrine and “qualifies as a reviewable final decision within the
compass of 28 U.S.C. § 1291.” Osborn v. Haley, 549 U.S. 225, 238 (2007).

                                         -3-
Ms. Martinez-Barnish that she could not go home because she had used all of her

available sick leave. In response, Ms. Martinez-Barnish testified that she

        suggested to [Ms. Sandoval] that she might think about wanting [to]
        file a claim for lost wages with– against Denver West properties and
        that if she wanted credible testimony that I would be glad to help her,
        that we should look at these bites, and I suggested to her that I would
        contact Ms. Shirley Contreras, who was the supervisor and lead for
        Navarro at that time, and get her to come down and bear witness as
        well.

Aplt. App. at 102-03.

        Ms. Martinez-Barnish then asked Ms. Sandoval to join her and another

female employee, Shirley Contreras, in the bathroom. The three women went into

the handicapped bathroom stall and, at the request of Ms. Martinez-Barnish,

Ms. Sandoval showed both women the bite marks on her arm, legs, and inner

thigh. Ms. Martinez-Barnish asked Ms. Sandoval to remove her blouse and pants

to show the bite marks and Ms. Sandoval complied with this request.

Ms. Martinez-Barnish also pulled down on the elastic part of Ms. Sandoval’s

panties from her back/posterior side to see the bite marks. Ms. Martinez-Barnish

and Ms. Contreras observed that Ms. Sandoval had multiple red bite marks on her

body.

        Based on this incident, Ms. Sandoval filed a complaint against

Ms. Martinez-Barnish asserting claims of assault, battery, extreme and outrageous

conduct, and intentional interference with contractual relations.




                                          -4-
                                       Discussion

         Under 28 U.S.C. § 2679(b)(1), a suit against the United States is the

exclusive remedy for persons with claims for damages resulting from the

negligent or wrongful actions of federal employees taken within the scope of their

employment. The United States and Ms. Martinez-Barnish contend that the

district court erred in denying the government’s motion to substitute because

Ms. Sandoval’s claims against Ms. Martinez-Barnish involve actions taken by

Ms. Martinez-Barnish within the scope of her employment as an employee of the

United States. We review de novo the district court’s determination that

Ms. Martinez-Barnish was not acting within the scope of her employment when

she committed the alleged torts. See, e.g., Singleton v. United States, 277 F.3d

864, 870 (6th Cir. 2002); Maron v. United States, 126 F.3d 317, 326 n.8 (4th Cir.

1997).

         For the purposes of this case, “scope of employment” is defined by the

respondeat superior law of the state where the incident occurred. Richman v.

Straley, 48 F.3d 1139, 1145 (10th Cir. 1995). Under Colorado law, “[a]n

employee is acting within the scope of his employment if he is doing the work

assigned to him by his employer, or what is necessarily incidental to that work, or

customary in the employer’s business.” Moses v. Diocese of Colo., 863 P.2d 310,

330 (Colo. 1993). “Although the commission of an intentional tort may

sometimes be within the scope of employment, the agent’s intent in committing

                                           -5-
the tortious act must be to further the employer’s business.” Id. at 330 n.27.

“[I]f an employee commits an intentional tort solely for reasons that do not

further his employer’s business or cannot be considered a natural incident of

employment, the employer cannot be vicariously liable.” Id.

      Ms. Martinez-Barnish was not doing work assigned to her, work that was

incidental to her employment, or work that was customary in her business when

she conducted a physical examination of Ms. Sandoval. Christopher Powers,

Ms. Martinez-Barnish’s supervisor, testified that Ms. Martinez-Barnish’s physical

examination of Ms. Sandoval was not authorized and was not appropriate.

Ms. Martinez-Barnish had discharged any duty to her employer to report unsafe

workplace conditions when she notified DOE and Mr. Powers about the flying ant

problem on July 13, even going so far as to provide them with a flying ant that

she had captured in a plastic bag. In addition, Ms. Martinez-Barnish had fulfilled

any responsibility to make it possible for Ms. Sandoval to continue working by

moving Ms. Sandoval to a different workspace.

      The government claims, however, that the district court did not properly

consider evidence of Ms. Martinez-Barnish’s intent. The government asserts that

Ms. Martinez-Barnish’s “undisputed testimony . . . compels the conclusion that

her intent in conducting the physical exam of plaintiff was to further the

agency’s interest in resolving a serious and ongoing workplace safety and

personnel issue at a U.S. Government worksite.” Aplt. Br. at 21. We disagree

                                         -6-
with the government’s characterization of Ms. Martinez-Barnish’s testimony.

She testified: “My intent was to help a co-worker and friend with a situation that

was not– that appeared to us not being resolved.” Aplt. App. at 106-07 (emphasis

added). She further explained that she felt it was her duty to conduct the physical

examination because Ms. Sandoval “needed assistance with the situation, and it

cost her sick leave and probably money in the long run, so it was to provide

credible testimony in the event that she wanted to pursue the situation further.”

Id. at 109.

      According to the evidence, Ms. Martinez-Barnish’s intent in conducting the

physical examination was for the benefit of Ms. Sandoval because

Ms. Martinez-Barnish wanted to be able to provide credible testimony to assist

Ms. Sandoval in making a claim for lost wages. Although

Ms. Martinez-Barnish’s ultimate purpose in conducting the physical examination

could have been benevolent, that benevolence would not have been any benefit to

the DOE. Because Ms. Martinez-Barnish did not commit the alleged torts to

“further [her] employer’s business,” Moses, 863 P.2d at 330 n.27, the district

court properly concluded that she was not acting within the scope of her

employment when she conducted a physical examination of Ms. Sandoval.




                                         -7-
Accordingly, we affirm the district court’s decision to deny the government’s

motion to substitute.


                                              Entered for the Court


                                              John C. Porfilio
                                              Senior Circuit Judge




                                        -8-
