ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: HIGGINBOTHAM and SLOVITER, Circuit Judges, and GREEN, District Judge.*fn*
HIGGINBOTHAM, A. LEON, JR., Circuit Judge.
Plaintiff, Shirley Araujo, a civilian Equal Employment Opportunity ("EEO") officer, brought an action against her supervisor, Major General James Welch of the United States Army. Ms. Araujo claimed that following an army sponsored EEO banquet, Major General Welch physically abused and verbally assaulted her. She filed suit in district court against Major General Welch in his official and individual capacities seeking recovery for common law assault, battery, intentional infliction of emotional distress, and constitutional tort claims. Major General Welch moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a cause of action upon which relief can be granted. Alternatively he moved for summary judgment under Fed. R. Civ. P. 56(b). The district court granted the motion to dismiss all but Ms. Araujo's common law tort claims of assault, battery and intentional infliction of emotional distress brought against Major General Welch in his individual capacity. On these issues, the motion for summary judgment was denied. The district court ruled that the alleged common law torts failed to fall within the outer perimeters of the defendant's official duties and was therefore not covered by the official immunity doctrine as articulated in Barr v. Matteo, ("Barr"), 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959). We will reverse in part and affirm in part.*fn1
Ms. Araujo and Major General Welch attended an Army sponsored EEO conference and banquet at which Major General Welch spoke. Ms. Araujo alleges that after Major General Welch spoke the two of them discussed office matters. She alleges further that during this discussion Major General Welch "repeatedly pok[ed] and shov[ed] her in the chest . . . [and] used loud, vulgar, threatening, demeaning and abusive language . . . which threatened her employment with the federal government." App. at 30. Although Major General Welch denies having "either struck, poked, shoved, or touched Ms. Araujo," App. at 40, for purposes of this appeal we must accept Araujo's allegations as true. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978).
Major General Welch maintains that he was acting within the scope of his authority and therefore should be granted official immunity from liability. Major General Welch argues on appeal that under Barr he is entitled to absolute immunity from liability on the common law tort claims of (1) assault; (2) battery and (3) intentional infliction of emotional distress.
We now consider whether Barr entitled Major General Welch to absolute immunity from liability on the common law tort claims listed above. Barr involved a libel action brought by the Acting Director of the Office of Rent Stabilization. The Supreme Court, in a plurality decision, held that the acting director was absolutely immune from damages arising from the allegedly defamatory press release.
Speaking for the plurality, Justice Harlan reasoned that an official immunity doctrine was needed because government officials
should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties -- suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.
Barr, 360 U.S. at 571.Based on this reasoning the Acting Director was shielded from prosecution. The libel claim involved actions "within the outer perimeter of [the acting director's] line of duty. . . ." Barr, 360 U.S. at 575.
In this case Major General Welch asserts that Ms. Araujo's claim also concerned actions within his line of duty. Thus, under Barr, he concludes that ...