Suit against Manager in Personal Capacity
Wednesday, September 04, 2013
On July 26, the U.S. Court of Appeals for the District of Columbia in Jacobs v. Vrobel, No. 12-5107, upheld the dismissal of Jacobs’ lawsuit against her former manager at the General Services Administration for allegedly harming her through bad employment references to her prospective employers.
Jacobs, who worked for GSA from 1990-2010, alleged that she had tried to apply to other jobs many times over the course of her GSA tenure but allegedly had not been selected due to bad employment references from her former supervisor. As a result, Jacobs sued him in his personal capacity in D.C. Superior Court for defamation and interference with her seeking other employment options.
The Justice Department invoked the Westfall Act, filing a certificate stating that the supervisor was acting in the scope of his employment at GSA. As a result, he was dismissed from the suit and the United States took over as defendant, and the case was removed from D.C. Superior Court to U.S. District Court for the District of Columbia. Once there, the government moved to have the case dismissed on two grounds: no waiver of sovereign immunity for the claims raised by Jacobs, and failure to administratively exhaust her claims against the United States under the Federal Tort Claims Act. The District Court granted the motion to dismiss, and Jacobs then appealed that dismissal to the D.C. Circuit.
On appeal, the D.C. Circuit affirmed the dismissal. Under the Westfall Act, once the Attorney General has certified that an employee is acting in the scope of his federal employment with respect to a tort suit, the burden shifts to the plaintiff to show that the employee in question exceeded the scope of his employment. The court reasoned that providing an employment reference to a prospective employee “plainly” falls within the scope of duties of a supervisor. The court distinguished cases where employees were found to exceed their scope of employment through a variety of egregious acts (for example, assault and battery of a co-worker or filing false adverse incident reports while destroying related exculpatory evidence in connection with an attempt to coerce signing of a false statement).
This case serves as a reminder of the difficulty in suing federal managers directly.