The opinion of the court was delivered by: Judge McVerry
For the reasons that follow, the United States' Motions for Substitution of Party (Doc. 48) and to Dismiss (Doc. 50) will be denied without prejudice, and the parties ordered to attend a status conference.
The Plaintiff has filed this employment discrimination lawsuit against the Postal Service and Robert K. Mullin, the supervisor who allegedly subjected her to sexual harassment. See generally Am. Compl. (Doc. 29). Ms. Mattheis brings Title VII claims against the government Defendants, and state law tort claims against Mr. Mullin in his individual capacity. See id.
The government has filed a Motion to substitute itself for Mr. Mullin, alleging that he acted within the scope of his employment. See Doc. 48 at ¶ 4. The law makes clear that, if the request for substitution is granted, the Plaintiff's tort claims are subject to dismissal under the Westfall Act, 28 U.S.C. § 2679. See generally Melo v. Hafer, 13 F.3d 736, 739 (3d Cir. 1994) (Westfall Act "provides federal employees acting within the scope of their employment . . . absolute immunity from damage liability on state law tort claims").
The Attorney General ("the AG") has certified here that, "[o]n the basis of the information now available," Mr. Mullin "was acting within the scope of his employment" for the purposes of the Amended Complaint. See Ex. A to Doc. 48. Assuming the validity of this certification, it stands as prima facie evidence in support of the substitution request. See generally Melo, 13 F.3d at 742, 747. The burden then shifts to the Plaintiff to "com[e] forward with specific facts rebutting it." See id. at 742 (citation and internal quotations omitted). In meeting this burden, she may not rest on the allegations in the Complaint. Cf. id. at 739 ("a district court need not accept the allegations of the complaint as true when deciding a motion for substitution").
The Plaintiff appears to recognize that her current opposition is insufficient. See Pl.'s Opp'n Br. (Doc. 53) at 6 ("[n]o formal discovery has yet been conducted," and "discovery and an evidentiary hearing may be required in order to resolve the scope of employment issue"). The question that remains is where we go from here.
The Melo decision sets forth the appropriate standards:
The Attorney General's certification should state the basis for his or her conclusion. If this is done, the certification will focus the subsequent proceedings . . . .
If the Attorney General's certification is based on a different understanding of the facts than is reflected in the complaint, the plaintiff should be permitted reasonable discovery and should then be called upon to come forward, as if responding to a motion for summary judgment, with competent evidence supporting the facts upon which [s]he would predicate liability, as well as any other facts necessary to support a conclusion that the defendant acted beyond the scope of his employment. If the plaintiff fails to tender such evidence, the statute requires that substitution be ordered.
If the plaintiff does come forward with competent evidence that would permit a conclusion contrary to that found in the certification, the defendant[s] . . ., after discovery if desired, are entitled to an evidentiary hearing at which both sides will tender their evidence on all disputes material to the scope of employment issue. Thereafter, the district court will resolve all issues of fact or law relevant to that issue and will find that the defendant did or did not act within the scope of his or her employment. If the court's finding favors the defendant, substitution must be granted. If the court determines that the defendant did not act within the scope of his or her employment, the case will proceed against the defendant employee.
The state law claims against Mr. Mullin, and the government's response thereto, present some issues within the context of the above-referenced standards.
First is the government's certification. The only apparent basis for the AG's "scope of employment" assertion is the following ...