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McHUGH v. UNIVERSITY OF VERMONT
758 F.Supp. 945 (1991)
Janet H. McHUGH
v.
UNIVERSITY OF VERMONT, Christopher Wheeler, and James P. Alexander.
Civ. A. No. 90-174.
United States District Court, D. Vermont.
February 5, 1991.
Michael J. Gannon, Pierson, Wadhams, Quinn & Yates, Burlington, Vt., for plaintiff.
Robert L. Sand, Dinse, Erdmann & Clapp, Burlington, Vt., and Francine Bazluke, Associate Gen. Counsel, University of Vermont, Burlington, Vt., for defendant, University of Vermont.
Helen M. Toor, Asst. U.S. Atty., Burlington, Vt., for defendants Christopher Wheeler and James P. Alexander.
OPINION AND ORDERPARKER, District Judge. PROCEDURAL BACKGROUNDPlaintiff's initial complaint, filed in state court on June 12, 1990, contained four counts alleging sexual harassment by the University of Vermont (hereinafter "UVM") and the two individual defendants. Count I alleges a violation of the Vermont Fair Employment Practices Act by virtue of unfair sexual and religious discrimination in the workplace, a retaliatory discharge and an improper unfavorable evaluation. In count II, plaintiff alleges that defendants' conduct was so outrageous in character and so extreme in degree as to constitute intentional infliction of emotional distress. The third cause of action alleges violations of state and federal constitutional privacy rights as well as substantive and procedural due process rights. The fourth count alleges that defendants breached an implied covenant of good faith and fair dealing in employment. Each of the four counts is asserted against all three defendants. UVM removed the case to this Court pursuant to 28 U.S.C. §§ 1331, 1441-52 and Fed.R.Civ.P. 81(c). The two individual defendants, Wheeler and Alexander, have moved to dismiss counts I, III and IV for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). They also moved to substitute the United States as the defendant in count II and then to dismiss that count against the United States.1 A hearing on the motions was held on November 14, 1990. The standard for dismissal of a claim under Rule 12(b)(6) is that it must be apparent that plaintiff is unable to prove any set of facts which would entitle her to relief. See Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). In making this determination, the court must accept the plaintiff's allegations to be true and view them in the light most favorable
to plaintiff. See Scheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Applying those standards, the Court grants the individual defendants' motion to dismiss as to the first and third causes of action. The Court grants defendant Alexander's motions to substitute the United States as defendant, to dismiss count II and to dismiss count IV. The Court denies defendant Wheeler's motion to substitute the United States as defendant and thereafter to dismiss count II and his motion to dismiss count IV. FACTSTaking the facts as alleged in the complaint, in the light most favorable to plaintiff, as we must do for purposes of the pending motion, they are as follows. Plaintiff was an employee of UVM working in the Military Studies Department as a Secretary III. Her co-worker, Major (now Lt. Colonel) Christopher Wheeler harassed her on account of her sex and her religion. Wheeler's conduct created a hostile work environment that caused her emotional and physical harm. Furthermore, Wheeler joked about plaintiff's contracting AIDS, stating that he hoped she would be able to avoid infection over the summer while he was away, and he repeatedly suggested that plaintiff must be living with someone. He told Ms. McHugh that his definition of a "secretary" was a paid whore and he said to plaintiff, it's "a good day to watch Catholic babies burn." Amended Complaint ¶ 6.
1. On November 12, 1990, while the motion to dismiss by the individual defendants was pending, plaintiff moved to amend her complaint. The motion to amend is unopposed by the government, and is hereby granted. Since the first four counts of the amended complaint are virtually identical to the original complaint, this Court will treat the previously filed motion to dismiss as a motion to dismiss the amended complaint's first four counts. 2. Both the plaintiff and the defendants cite 28 U.S.C. § 2679(d)(2) in connection with their arguments. Section 2679(d)(1) provides for substitution of the United States as defendant after certification by the Attorney General in cases already in federal court. Subsection (d)(2) provides for substitution of the United States after certification by the Attorney General in a civil action commenced in state court and states that "certification ... shall conclusively establish scope of office or employment for purposes of removal." In the instant case, removal was not by the United States after certification, but by UVM. Hence, this Court finds that subsection (d)(1) applies and is reviewing the Attorney General's scope of employment certification under that subsection. 3. 28 U.S.C.A. § 2680(h) (West Supp.1990). 4. The Second Restatement of the Law of Agency is the same as the First Restatement in this section. Restatement (Second) of Agency § 235 (1957). 5. McHugh's two letters to Colonel Snodgrass on July 30, 1987 and August 5, 1987 fail to state a sum certain and therefore do not fulfill the administrative requirements for a "claim."
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