Shirley v. United States , 232 F. App'x 419 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-10654
MARILYN SHIRLEY and RAYMOND DOUGLAS SHIRLEY,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
4:03-CV-1385
Before KING, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant-Plaintiff Marilyn Shirley (“Shirley”) appeals the
district court’s order granting summary judgment in favor of the
Defendant-Appellee the United States of America on her claims
brought under the Federal Tort Claims Act (“FTCA”). For the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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reasons that follow, we AFFIRM.
In January 1998, Plaintiff Marilyn Shirley (“Shirley”) entered
the federal prison at Federal Medical Center Carswell (“FMCC”), a
relaxed supervision facility located in Fort Worth, Texas, to begin
serving a 37-month sentence on a drug conviction. On March 11,
2000, Officer Michael Lawrence Miller, a correctional officer at
FMCC, sexually assaulted Shirley.
In November 2003, after successfully pursuing a civil action
against Miller, Shirley sued the United States under 28 U.S.C. §
1346(b) of the FTCA. She asserted claims under the theory of
respondeat superior for intentional infliction of emotional
distress, battery, assault, false imprisonment, negligence per se,
and negligence. The government moved for summary judgment on all
of Shirley’s claims, arguing that the FTCA’s waiver of sovereign
immunity did not apply because Miller was not acting within the
scope of his employment during the sexual assault. The district
court agreed and granted the government’s motion. Shirley lodges
this appeal.
As the sovereign, the United States is immune from suit
unless, and only to the extent that, it has consented to be sued.1
Through the enactment of the FTCA, the government has generally
waived its sovereign immunity from tort liability for the negligent
or wrongful acts or omissions of its agents and employees who act
1
FDIC v. Meyers, 510 U.S. 471, 475-76 (1994).
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within the scope of their employment “under circumstances where the
United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission
occurred.”2 Under Texas law, an employee acts within the scope of
his employment if his actions are: (1) within the general authority
given him; (2) in furtherance of the employer’s business; and (3)
for the accomplishment of the object for which the employee was
employed.3 The district court concluded that Miller’s actions were
not within the scope of employment because the sexual assault did
not advance the United States’s work, as required by prongs (2) and
(3), and instead constituted a wholly personal action.4
On appeal, Shirley argues that while the district court
correctly articulated the general test for scope of employment in
Texas, it failed to recognize and apply other Texas cases which
have extended vicarious liability to an employer for an employee’s
actions despite a failure to fulfill all three prongs of the above
test. Shirley specifically seeks to avoid prongs (2) and (3),
which require some business purpose be attributable to the acts
2
28 U.S.C. § 1346(b)(1); Garcia v. United States, 62 F.3d
126, 127 (5th Cir. 1995) (en banc).
3
Ross v. Marshall, 426 F.3d 745, 763-64 (5th Cir. 2005)
(citing numerous Texas cases).
4
See Mackey v. U.P. Enters. Inc., 935 S.W.2d 446, 453 (Tex.
App.–Tyler 1996, no writ) (explaining that, under Texas law,
where an employee turns away from the advancement of the
employer’s work to engage in wholly personal actions, he ceases
to act for the employer, and the responsibility for those
personal actions is upon him alone).
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surrounding or leading to the wrongful conduct. However, the cases
discussed by Shirley fail to support this argument because they
involved instances where the employee’s act was closely related to
a legitimate employment goal or duty.5 Shirley fails to allege
that a similar legitimate employment interest animated Miller’s
sexual assault in the instant case.
We similarly reject Shirley’s arguments based on
foreseeability and apparent authority. None of the cases relied
upon are sufficiently analogous nor do they serve to excuse a
plaintiff in this context from making a showing that an employee’s
wrongful act grew out of a legitimate employment duty or goal.6
Finally, we reject Shirley’s argument that the government’s
successful criminal prosecution of Miller for abuse of a ward
serves to estop the government from arguing that Miller was acting
5
See Gulf, C. & S.F. Ry. Co. v. Cobb, 45 S.W.2d 323, 326
(Tex.Civ.App.–Austin 1931, writ dism’d w.o.j.) (employee's act
would be imputed to the employer where the employee was acting to
prevent his victim from interfering with the performance of the
employee's assigned duties); Houston Transit Co. v. Felder, 208
S.W.2d 880, 882 (Tex. 1948) (evidence raised a jury issue as to
the company's liability for an assault by its employee where
employee testified that his purpose in approaching motorist was
to secure information for his employer).
6
Shirley relies on the following cases: Hooper v. Pitney
Bowes, Inc., 895 S.W.2d 773, 777 (Tex.App.–Texarkana 1995, no
writ) (explaining that the actions of an employee who is deemed
to have acted within the scope of his employment are generally
imputed to the employer but that an exception applies where the
acts are unforeseeable); Borg-Warner Protective Services Corp. v.
Flores, 955 S.W.2d 861 (Tex.App.–Corpus Christi 1997, no writ)
(finding that supervisor’s rape of a female subordinate would
establish a constructive discharge).
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outside the scope of his employment during the sexual assault. A
conviction under 18 U.S.C. § 2243(b) does not establish scope of
employment under Texas law.
AFFIRMED.
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