                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2008

Ismael v. Ali
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1636




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No.07-1636
                                    ____________

                                  TAREQ ISMAEL,
                                         Appellant

                                          v.

  ABBAS ALI, Department of Management Eberely College of Business; MANTON
   GIBBS, Department of Management Eberly College of Business; CAROL DRYE,
   Department of Management Eberly College of Business, ROBERT CAMP, Eberly
  College of Business, BHARAT DAS, Department of Management Eberly College of
  Business, AMERICAN SOCIETY FOR COMPETITIVENESS; INTERNATIONAL
        SOCIETY FOR COMPETITIVENESS; INDIANA UNIVERSITY OF
                              PENNSYLVANIA
                                ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         D.C. Civil Action No. 99-cv-01932
                            (Honorable Gary L. Lancaster)
                                   ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 17, 2008

           Before: SLOVITER, JORDAN, and ALARCÓN,* Circuit Judges.

                                (Filed: April 29, 2008)
                                     ____________

                             OPINION OF THE COURT


      *
        The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
                                      ____________

ALARCÓN, Circuit Judge.

              Tareq Ismael appeals from the order of the District Court granting summary

judgment in favor of Abbas Ali and Manton Gibbs who are professors at Indiana

University of Pennsylvania (“IUP”). The District Court granted Ali’s and Gibbs’s motion

for summary judgment as to Ismael’s claim for defamation. Ismael contends that the

District Court erred in concluding that Ali and Gibbs were acting within the scope of their

employment when they allegedly distributed defamatory letters about him. We affirm

because we conclude that Ali and Gibbs were acting within the scope of their

employment.

                                             I

                                             A

       The facts set forth in Ismael’s opposition to the motion for summary judgment

demonstrate that he is a political science professor at the University of Calgary. Ali and

Gibbs are professors at the Eberly College of Business at IUP.

       In November 1998, all three professors were involved in a conference at the

Eastern Mediterranean University in northern Cypress. Ismael and Robert Camp, Dean of

the business school at IUP, were part of the committee that organized the conference. Ali

and Gibbs acted as coordinators for the conference. IUP sponsored the conference along

with other organizations, including the American Society for Competitiveness (“ASC”)



                                             2
and the International Society for Competitiveness (“ISC”). Camp, Ali, and Gibbs served

as incorporators and officers for ASC and ISC.

       The gravamen of Ismael’s claim is that Ali and Gibbs were responsible for a series

of letters which allegedly contained false statements that Ismael improperly handled funds

collected for the conference. At the conclusion of the conference, these letters were sent

first to Ismael, then to his employer, and also to conference participants. All of the letters

were written on either ASC or ISC letterhead and signed by IUP employees. Gibbs

signed the last four letters. In two of the letters, Gibbs signed them as “Conference

Coordinator” and the “Conference Coordinator, American Society for Competitiveness.”

He signed the other two letters as “Professor and Conference Coordinator.”

                                              B

       On January 15, 2003, Ismael filed an amended complaint against ASC, ISC, and

five IUP employees, including Ali and Gibbs, seeking damages for defamation, civil

conspiracy, intentional infliction of emotional distress, and false light. On November 17,

2003, the District Court granted in part, and denied in part, defendants’ motions for

summary judgment. Only Ismael’s defamation claim against ASC, Ali, and Gibbs

survived summary judgment. The defendants appealed on the basis that Ali and Gibbs

were entitled to sovereign immunity.

       This Court, in Ismael v. Ali, No. 03-4894, 141 Fed. Appx. 36, 2005 WL 1532443,

at **1 (3d Cir. June 30, 2005), vacated the summary judgment ruling on the ground that it



                                              3
    was “concomitantly unable to ascertain whether [it had] appellate jurisdiction.” This

    Court remanded the case with an instruction to “revisit the issue of sovereign immunity”

    and to “reconsider” Ali’s and Gibbs’s motion for summary judgment. Id. at **2.

           On remand, the District Court reconsidered Ali’s and Gibbs’s motion for summary

    judgment. On January 31, 2007, the District Court granted summary judgment in favor of

    Ali and Gibbs on the basis that they were entitled to sovereign immunity. Ismael filed a

    timely notice of appeal.1 Ismael v. Ali, No. 99-1932, 2007 WL 336286 (W.D. Pa., Jan 31,

    2007). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                                 II

           There is no dispute that District Court properly concluded that Ali and Gibbs are

    “employees of the Commonwealth.” Under Pennsylvania law, “the Commonwealth, and

    its officials and employees acting within the scope of their duties, shall continue to enjoy

    sovereign immunity and official immunity and remain immune from suit . . . .” 1 Pa.

    Cons. Stat. Ann. § 2310. Thus, the question before us is whether Ali and Gibbs acted

    within the scope of their employment. If they did, then they are entitled to assert

    sovereign immunity.

           Ismael argues that Ali and Gibbs were not acting within the scope of their

    employment with IUP when they sent the letters. First, he contends that they were writing

    the letters on behalf of ASC, not IUP. Second, Ismael maintains that they were writing

           1
1          On February 5, 2007, the District Court granted the parties’ stipulation wherein
2   Ismael agreed to dismiss his claims against ASC.

                                                  4
the letters in furtherance of a “personal vendetta” against him. Ali and Gibbs argue that

both of these assertions are irrelevant to the appeal. “Our standard of review on an appeal

from a grant of summary judgment is plenary . . . applying the same standard the District

Court was required to apply.” Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524,

535 (3d Cir. 2007) (internal citations omitted).

       “Pennsylvania has accepted the Restatement (Second) of Agency's definition of

conduct ‘within the scope of employment.’” Brumfield v. Sanders, 232 F.3d 376, 380 (3d

Cir. 2000). This Court explained:

              According to the Restatement, “conduct is within the scope of
              employment if, but only if: (a) it is the kind [the employee] is
              employed to perform; (b) it occurs substantially within the
              authorized time and space limits [and] (c) it is actuated, at
              least in part, by a purpose to serve the master . . . .”

Id. (citing Restatement (Second) of Agency § 228(1)); see also Butler v. Flo-Ron Vending

Co., 557 A.2d 730, 736 (Pa. Super. Ct. 1989) (adopting definition of scope of

employment as set forth in § 228).

                                              A

       Ali’s and Gibbs’s involvement in the conference was the kind of conduct that IUP

employed them to perform. Camp, the Dean of the business school, testified at his

deposition that IUP expected its professors to be involved in conference activities. He

also testified as follows: “[V]irtually all activities of an academic scholarly nature are

within their [Ali’s and Gibbs’s] scope [of employment], because they reflect back on the



                                              5
university, so, I mean, almost on a weekly basis there’s correspondence going out that I

don’t authorize . . . .” App. 380 (emphasis added). The record shows, IUP was one of the

sponsors of the conference. IUP officials knew that Ali and Gibbs were involved in

planning the conference. Ali’s and Gibbs’s participation reflected back on IUP.

Although the allegedly defamatory letters were written subsequent to the conference, they

concern conference financial issues. The District Court explained: “Looked at another

way, had Ali and Gibbs not taken action to address possible improprieties in the handling

of Conference funds, they would have been neglecting their duties to the participants and

sponsors, including IUP, their employer.” Ismael, 2007 WL 336286 at *4. We agree. It

is apparent that Ali’s and Gibbs’s conduct “is the kind” they were “employed to perform.”

Restatement (Second) of Agency § 228(1)(a).

       Ismael argues that Camp’s statement that he did not “authorize” the first letter

constitutes “IUP’s official denial of involvement.” However, Camp’s testimony at

deposition shows that not having authorized the letter is of no significance because IUP

faculty often wrote letters without the need to seek his authorization.

                                             B

       There is no dispute that Ali’s and Gibbs’s conduct occurred “substantially within

the authorized time and space limits.” Restatement (Second) of Agency § 228(1)(b).

Ismael does not make any contrary argument.

                                             C



                                             6
       Ali’s and Gibbs’s conduct served, at least in part, the interests of IUP. Sections

226 and 236 of the Restatement (Second) of Agency, both of which are adopted by

Pennsylvania, are applicable here. Section 226 provides: “A person may be the servant

of two masters, not joint employers, at one time as to one act, if the service to one does

not involve abandonment of the service to the other.” Coleman v. Bd. of Educ. of the Sch.

Dist. of Philadelphia, 383 A.2d 1275, 1279 (Pa. 1978) (adopting section 226).

       Section 236 provides: “Conduct may be within the scope of employment, although

done in part to serve the purposes of the servant or of a third person.” Yaindl v. Ingersoll-

Rand Comp., 422 A.2d 611, 619 (Pa. Super. Ct. 1980) (adopting section 236) modified on

other grounds, Yetter v. Ward Trucking Crop., 585 A.2d 1022, 1026 (Pa. Super. Ct.

1991). The first comment to Section 236 illustrates that conduct taken both to “revenge a

personal insult” and to get a job done faster is within the “scope of employment.”

Restatement (Second) of Agency § 236 illus. 1 (1958) (explaining that a servant is acting

in the scope of employment when “the servant, although performing his employer's work,

is at the same time accomplishing his own objects or those of a third person which

conflict with those of the master.”).

       As discussed above, the facts, taken in a light most favorable to Ismael, show that

IUP’s interests were served by Ali’s and Gibbs’s involvement in the conference. Their

involvement included planning the conference and writing letters to Ismael concerning

post-conference financial matters. Ismael’s argument that their involvement served the



                                              7
interests of ASC does not change the fact that Ali and Gibbs also served the interests of

IUP.

       Likewise, Ismael’s argument that Ali and Gibbs authored the letters as a “personal

vendetta” against him also fails. Under section 236, even if Ali and Gibbs were taking

revenge of a personal insult, they could have been serving their own interests, as well as

the interests of IUP. See, e.g,. Brumfield, 232 F.3d at 380 (“This Court has previously

held that under Pennsylvania law, the mere existence of a personal motivation is

insufficient to relieve the employer from liability where the conduct also benefitted him

and was within the scope of employment generally.”).

                                        Conclusion

       Viewing the facts in light most favorable to Ismael, Ali and Gibbs were acting

within their scope of employment with IUP when they wrote the post-conference letters:

(1) they were engaged in “the kind” of work they were “employed to perform;” (2) the

conduct occurred “substantially within the authorized time and space limits;” and (3) the

conduct was “actuated, at least in part, by a purpose” to serve IUP. Restatement (Second)

of Agency § 228(1). Therefore, the District Court did not err in granting summary

judgment in favor of Ali and Gibbs on the basis that, as Commonwealth employees, they

could assert sovereign immunity. 1 Pa. Cons. Stat. Ann. § 2310. For the foregoing

reasons, we AFFIRM the District Court’s order.




                                             8
