
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1394                          LYNETTE SANTIAGO-RAMIREZ, ET AL.,                               Plaintiffs - Appellants,                                          v.                          SECRETARY OF DEPARTMENT OF DEFENSE                                OF THE U.S.A., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Boyle,* Senior District Judge.                                      _____________________                                _____________________               John Ward-Llamb as for appellants.               __________________               Isabel Mu oz-Acosta, Assistant  United States Attorney, with               ___________________          whom  Guillermo Gil,  United States  Attorney,  was on  brief for                _____________          appellees.                                 ____________________                                   August 16, 1995                                 ____________________                                        ____________________          *  Of the District of Rhode Island, sitting by designation.                    BOYLE, Senior District Judge.   The questions presented                    BOYLE, Senior District Judge.                           _____________________          on  appeal in this case  are the following:  whether this Court's          statement,  in its prior reversal of the district court, that the          complaint   might  be  read  to  state  a  cause  of  action  for          intentional infliction of emotional distress constitutes the "law          of the case"  which binds the district court and, if not, whether          the district court's subsequent dismissal was proper.  Because we          find that  this Court did not  previously express its view  as to          the  law  applicable to  this case  and  that the  district court          correctly dismissed the case, we affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                                    ______________                    We summarize  the facts only  briefly as they  are laid          out in  detail in  our prior  opinion.   See Santiago Ram rez  v.                                                   ___ ________________          Secretary of the  Department of  Defense, 984 F.2d  16 (1st  Cir.          ________________________________________          1993).  Because this is a  review of a grant of summary judgment,          we view  the facts in a  light most favorable to  the non-movant.          See Coyne  v. Taber Partners,  53 F.3d 454, 457  (1st Cir. 1995).          ___ _____     ______________          Appellant, Santiago, worked as a  cashier at Fort Buchanan's Army          Post  Exchange Store.   The  store's policy  prohibited employees          from  carrying merchandise through the  front door.   On June 29,          1990,  Santiago and a  co-employee violated this policy when they          removed  bags  containing  store merchandise  through  the  front          entrance.    They  placed these  bags  in the  trunk  of  the co-          employee's  car.   Unbeknownst  to Santiago,  the bags  contained          stolen  merchandise.    The   Safety  and  Security  Manager  and          Santiago's  supervisor questioned her  for a total  of 45 minutes                                         -2-          concerning  this breach of store policy.  Santiago told them that          she did not know that the merchandise was stolen but was aware of          the store's regulation  that prohibited  employees from  carrying          merchandise through the front door.  She was later terminated for          violating  this  regulation.    The District  Court  granted  the          defendant's motion  to dismiss based on its finding that Santiago          did  not  give  the defendant  adequate  notice  of  her suit  as          required by  the Federal Tort Claims  Act.  See 28  U.S.C.   2675                                                      ___          (1994).  Santiago appealed.                    We  found  that  a  letter  Santiago  had  sent  to the          defendants  satisfied  the  statute's  notice  requirement.   See                                                                        ___          Santiago, 984 F.2d  at 19.  Because the  government is not immune          ________          from suit based on a claim of intentional infliction of emotional          distress, we stated that the complaint "might be  read to plead a          cause  of   action  for   intentional  infliction   of  emotional          distress."  Id.  at 20.  We, therefore, remanded  to the District                      ___          Court  for a  determination  as to  whether Santiago's  complaint          could  be read  to  state  a  cause  of  action  for  intentional          infliction of emotional distress.  Santiago, 984 F.2d at 19.  See                                             ________                   ___          also, 28 U.S.C.   2680(h) (1994).          ____                    The district court again granted the defendant's motion          to  dismiss, holding that under Puerto Rico law the facts alleged          in the complaint did not state a claim for intentional infliction          of  emotional distress and the  action was thus  barred by Puerto          Rico's  Workmen's Accident  and Compensation  Act.   Santiago has          again appealed.                                         -3-                                   II.  DISCUSSION                                   II.  DISCUSSION                                   _______________                    The Law of the Case                    The Law of the Case                    ___________________                    Santiago asserts  that this  Court held that  her claim          could  go  forward on  the  theory of  intentional  infliction of          emotional distress.  She claims that the district court was bound          by this ruling  and could  not subsequently find  that the  claim          based on this theory was without merit.                      The  doctrine of  the law  of the  case directs  that a          decision of an appellate court as to a matter of law governs that          issue during all subsequent stages of litigation.  See Commercial                                                             ___ __________          Union  Insurance Co. v. Walbrook Insurance Co. Ltd., 41 F.3d 764,          ____________________    ___________________________          769 (1st Cir. 1994) (citing United States v. Rivera-Mart nez, 931                                      _____________    _______________          F.2d 148 (1st  Cir.),  cert. denied,  __ U.S. __, 112  S. Ct. 184                                 _____ ______          (1991)).  "When the reviewing  court, in its mandate,  prescribes          that  a court shall proceed in accordance with the opinion of the          reviewing court,  it incorporates its opinion  into its mandate."          Id. at  770 (citing Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.),          ___                 _____    _____          cert. denied  __ U.S. __, 113 S. Ct. 125 (1992)).          _____ ______                    Here, the Court of Appeals has issued no such  mandate.          Our prior opinion simply stated  that the appellant's claim might                                                                      _____          be read to state a cause  of action for intentional or  negligent          infliction of emotional distress.  See Santiago-Ram rez, 984 F.2d                                             ___ ________________          at 18.   We remanded to the district court for a determination of          this issue.  See  id. at 20, 21.   Moreover, this Court not  only                       ___  ___          refused  to  direct  the   district  court  on  this   issue,  it          specifically stated  that "[t]he present  disposition is  without                                         -4-          prejudice  of further motion disposition under Fed. R. Civ. P. 56          once the parties have had an opportunity of addressing the issues          consistently with this opinion."   Id.  Thus, this Court did  not                                             ___          determine that  Santiago's  claim for  intentional infliction  of          emotional distress had  merit.   The district court  was free  to          find  that the  complaint  failed to  state  a claim  under  that          theory.                    Dismissal for Failure to State a Claim                    Dismissal for Failure to State a Claim                    ______________________________________                    We must  now consider whether the  lower court properly          dismissed, for  a second time, Santiago's  claims for intentional          infliction of  emotional distress.   Santiago's claim  is brought          under the Federal Tort Claims Act  (FTCA).  See 28 U.S.C.   2671,                                                      ___          et seq. (1994).  The FTCA prescribes that the government can only          __ ____          be held liable "in accordance with the law of the place where the          act of omission occurred."  28 U.S.C.   1346(b)(1993).                      Puerto  Rico has  codified  the law  dealing with  tort          claims  by employees against  their employers in  the Puerto Rico          Workmen's Compensation Act (PRWACA).  See P.R. Laws Ann. tit. 11,                                                ___            1 et seq.   When an  employer insures his  or her employees  in              __ ___          accordance with the PRWACA, the  compensation provided by the act          becomes the exclusive remedy available to the plaintiff-employee.          See P.R. Laws Ann. tit. 11,    20.  According to Puerto Rico case          ___          law,  however,  intentional  torts   fall  outside  the  PRWACA's          compensatory  scheme.    See  Pacheco-Pietri v.  Commonwealth  of                                   ___  ______________     ________________          Puerto Rico, RE-89-524  Certified. Translation (S.Ct.P.R.  1992);          ___________          Odriozola  v.  Superior  Cosmetic  Dist. Corp.,  116  D.P.R.  485          _________      _______________________________                                         -5-          (1985).    Because  intentional   torts  are  excluded,  we  must          determine whether  Santiago's complaint states a  cause of action          for  a intentional tort; here the  tort of intentional infliction          of emotional harm.                      Because  there  is  limited  authority  in  Puerto Rico          concerning the  elements of the tort of intentional infliction of          emotional harm, we must look to other jurisdictions.  The tort of          intentional  infliction of emotional harm exists when "one who by          extreme and outrageous conduct intentionally or recklessly causes          severe emotional  distress to another."   Restatement (Second) of          Torts   46 (1965).  See also Thorpe v. Mutual of Omaha Ins.  Co.,                              ________ ______    _________________________          984  F.2d. 541, 545 (1st. Cir. 1993)(conduct must be "extreme and          outrageous,"   "beyond  all  possible  bounds  of  decency,"  and          "utterly  intolerable in  a  civilized  community").    Moreover,          courts  have allowed  employers  some  latitude in  investigating          possible employee misconduct.  See Starr  v. Pearle Vision, Inc.,                                         ___ _____     ___________________          54 F.3d 1548, 1558  (10th Cir. 1995).   In Starr, a 1995  case in                                                     _____          the tenth circuit, the court  held that a plaintiff's allegations          that her  employer yelled at her,  pushed her back down  into her          chair, touched her arm and blocked her exit from the  room during          questioning, did not rise to the level of outrageousness required          to  state  a  cause  of  action  for  intentional  infliction  of          emotional harm.                    Here the  complaint is quite fact specific.  It alleges          that Santiago was "questioned during around (sic) forty-five (45)          minutes and was shown  a videotape supposedly taken at  the store                                         -6-          where she worked."  Complaint at 2.  She was told that if she did          not  cooperate with the investigation "all of this could be taken          to  the F.B.I."   See  id.   After  the interview,  she signed  a                            ___  ___          statement.   See id.  These  acts as alleged are  well within the                       ___ ___          foreseeable consequences of her actions and fall far short of the          outrageousness  needed   to  support   a  cause  of   action  for          intentional  infliction  of  emotional  harm.    See  Restatement                                                           ___          (Second) of Torts   46 (1965).  See also Thorpe, 984 F.2d at 545;                                          ________ ______          Starr, 54 F.3d at 1558.          _____                    The  Supreme Court  of Puerto  Rico dealt  with similar          factual circumstances in Pacheco-Pietri v. Commonwealth of Puerto                                   ______________    ______________________          Rico,  RE-89-524 Certified.  Translation  (S.Ct.P.R. 1992).1   In          ____          Pacheco-Pietri  the plaintiff was a   corrections officer who was          ______________          required to submit to urinalysis.   See id. at 10.   The forensic                                              ___ ___          office  mistakenly  mixed the  plaintiff's  sample  with that  of          another employee which tested positive for  cocaine.  See id.  As                                                                ___ ___          a consequence, administrative  procedures were taken against  the          plaintiff including the requirement  that the plaintiff submit to          drug-addiction   treatment   at   the   Anti-Addiction   Services          Department.    See id.   After  the  mistake was  discovered, the                         ___ ___          plaintiff filed  a complaint  seeking damages for  negligence and          emotional distress.  See id. at 12.                               ___ ___                    The Supreme  Court of Puerto Rico  upheld that Superior          Court's  judgment dismissing the complaint.  See  id. at 23.  The                                                       ___  ___                                        ____________________          1   We  rely on  the certified  translation of  Pacheco-Pietri v.                                                          _________________          Commonwealth  of  Puerto Rico  provided    by  the parties  since          _____________________________          publication in the official English-language reporter is pending.                                         -7-          Supreme  Court, although  not  directly addressing  the issue  of          whether this  was an  intentional tort,  found that  the incident          constituted  a labor accident covered by Article 20 of the Puerto          Rico Workmen's  Accident  Compensation Act  and  not  intentional          conduct.   See id.  The court determined that the issue turned on                     ___ ___          whether the accident occurred  in the course of employment.   See                                                                        ___          id. at 19.  It stated that "when the employee suffers an accident          ___          in the performance of  a requirement imposed by the  employer for          the continuity of the employment, the same shall be considered as          having occurred  in the  course of employment."   Id.   The court                                                            ___          found that because the drug testing and subsequent treatment were          part   of  the   requirements   for  the   plaintiff's  continued          employment, the  accident and  injuries  stemming therefrom  were          solely compensable under the PRWACA and thus any civil action was          barred.  See id. at 23.                   ___ ___                    Here, the Fort Buchanan's  Army Post Exchange Store had          a policy,  similar to the drug-testing  policy in Pacheco-Pietri,                                                            ______________          prohibiting  employees from  using  the front  door to  transport          merchandise.  When Santiago was discovered to have violated  this          policy,   she was  questioned  by her  superiors as  part of  her          continued  employment.     There   is  no  allegation   that  the          questioning  was abusive,  extreme or  outrageously intimidating.          Plaintiff's  experience is  not  unlike that  experienced by  the          plaintiff  in  Pacheco-Pietri.    Santiago  claims,  without  any                         ______________          suggestion either that the questioning was  abusive or extreme in          light  of the circumstances,   that the actions  of her employers                                         -8-          constituted an intentional infliction  of emotional harm. Because          this questioning  was a necessary  incident of employment  for an          employee  who had  broken the  rules, under  Puerto Rican  law it          cannot be said to be intentionally tortious.   See Pacheco-Pietri                                                         ___ ______________          v.  Commonwealth  of  Puerto  Rico,  RE-89-524  Cert. Translation              ______________________________          (S.Ct.P.R. 1992), and Odriozola v. Superior Cosmetic Dist. Corp.,                                _________    _____________________________          116 D.P.R. 485 (1985).   III.  CONCLUSION                                   III.  CONCLUSION                                   ________________                    The   district   court's  conclusion   that  Santiago's          complaint does  not state a  claim for intentional  infliction of          emotional harm is not in error.  We affirm.                                         -9-
