Mark Baker v. Booz Allen Hamilton, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1152
MARK BAKER,
Plaintiff - Appellant,
v.
BOOZ ALLEN HAMILTON, INC.,
Defendant - Appellee.
No. 08-2321
MARK BAKER,
Plaintiff - Appellee,
v.
BOOZ ALLEN HAMILTON, INC.,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Roger W. Titus, District Judge.
(8:06-cv-00889-RWT)
Argued: October 28, 2009 Decided: December 28, 2009
Before MICHAEL, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Jane R. ROTH, Senior Circuit Judge of the United States
Court of Appeals for the Third Circuit, sitting by designation.

-- 1 of 18 --

Affirmed by unpublished per curiam opinion.
ARGUED: Kathleen Joanna Woody, Silver Spring, Maryland, for
Appellant/Cross-Appellee. Stephen William Robinson,
MCGUIREWOODS, LLP, McLean, Virginia, for Appellee/Cross-
Appellant. ON BRIEF: David L. Greenspan, MCGUIREWOODS, LLP,
McLean, Virginia, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
- 2 -

-- 2 of 18 --

PER CURIAM:
Mark Baker (Baker) brought this diversity action against
Booz Allen Hamilton, Inc. (BAH), alleging several negligence
claims arising from the alleged sexual assault of Baker by a BAH
employee. The district court granted summary judgment in favor
of BAH. Following this ruling, BAH moved for sanctions, which
the district court denied. Baker appeals the district court’s
summary judgment ruling, and BAH cross-appeals the district
court’s sanctions ruling. We affirm.
I
BAH is a management consulting firm with over 19,000
employees on six continents. In 1995, BAH commenced work for
the United States Agency for International Development as a
contractor on its project for the development and implementation
of an effective bankruptcy system in Kazakhstan and Kyrgyzstan
(the Bankruptcy Project).
On or about October 1, 1995, BAH entered into a one-year
contract with Baker’s mother, Kathleen Woody (Woody), in which
Woody agreed to provide consulting services as an independent
contractor, serving as “Chief of Party” to the Bankruptcy
- 3 -

-- 3 of 18 --

Project. (J.A. 70).1 As Chief of Party, Woody was responsible
for supporting the development of legislation to allow
bankruptcy laws to function in Kazakhstan and Kyrgyzstan. She
was also responsible for supervising expatriate staff and
reporting to her supervisors, who were located at BAH’s offices
in McLean, Virginia.
In October 1995, Woody traveled with her then-ten-year-old
son to Almaty, Kazakhstan to begin working on the Bankruptcy
Project. Woody’s primary work station was in Almaty, where she
resided with her son in an apartment, but she also made frequent
trips to the Bankruptcy Project’s Bishkek, Kyrgyzstan office.
During these trips to Bishkek, Woody would bring her son, and
the two would reside at the apartment of Vera Haugh, who worked
for the Bankruptcy Project in Bishkek. On occasion, Woody’s
responsibilities took her away from both Kazakhstan and
Kyrgyzstan, and on these occasions, Baker would stay with Haugh.
In Bishkek, Woody also had contact with another Bishkek-
based BAH employee working on the Bankruptcy Project, Brian
Davenport (Davenport). Davenport’s primary job duties were to
“deal with the non-legal, non-lawyer required aspects of
performance and scope work under the [Bankruptcy Project’s] task
1 Woody’s compensation package covered certain expenses for
her son during his year-long stay in Kazakhstan, including his
airfare to and from Kazakhstan and his school tuition.
- 4 -

-- 4 of 18 --

order.” (J.A. 81). Davenport reported to Woody for “scope of
work issues related to the task order itself,” but generally
reported to a Virginia-based BAH employee. Id.
Baker produced evidence that portrays Davenport as an
angry, disgruntled, and sometimes explosive employee. For
example, Dr. Igor Klyuchnikov, Deputy Chief of Party on the
Bankruptcy Project, described Davenport as an “angry and
sometimes physically and emotionally abusive person.” (J.A.
474). He personally observed Davenport “yelling at and
threatening staff, kicking furniture and throwing objects.” Id.
Some of the Kyrgyz nationals complained to Dr. Klyuchnikov, and
he received one complaint that Davenport slapped an employee.2
Woody testified that, between the months of January and
March 1996, she had repeated discussions with her BAH
supervisors concerning Davenport’s “explosive” behavior,
complaining in general about Davenport’s “[s]lapping, throwing,
shouting, screaming, [and] yelling.” (J.A. 257, 268).3 She
indicated the major catalysts for Davenport’s behavior were his
2 Baker also personally observed Davenport slap an employee
across the face.
3 Haugh testified that Davenport had a “bad temper,” but was
not the type of person who would assault someone. (J.A. 383).
Rather, “he’s the type that would throw things off his desk,
yell and scream, maybe stamp his feet . . . and slam doors.”
Id.
- 5 -

-- 5 of 18 --

wife’s desire to divorce him and his desire to return to work in
the United States.
Davenport also on occasion got angry with Baker. For
example, on a three-hour car ride from Almaty to Bishkek in
December 1995, Baker was playing a game with the hired driver
and perhaps acting a little rambunctiously. At one point,
Davenport (who was sitting in the front seat with the driver)
turned to Baker (who was sitting next to Woody in the backseat),
pointed his finger at him, and said, raising his voice, “if I
don’t get my REM [(Rapid Eye Movement)] sleep I’m going to
explode.” (J.A. 323). Moreover, at a New Year’s Eve party,
about three months before the alleged sexual assault, in a
threatening tone, Davenport told Baker he was going to “get”
him. (J.A. 287).
On April 6, 2006, Baker brought this negligence action
against BAH in the Circuit Court for Montgomery County,
Maryland.4 BAH removed the case to the United States District
Court for the District of Maryland. On March 9, 2007, Baker
filed an amended complaint. The amended complaint alleges that
[i]n or about March of 1996, while performing her
duties as hereinabove described in the country of
Kyrgyzstan, the Plaintiff, then a minor, who was
residing with his mother overseas, was raped and
4 Because of Baker’s age, the statute of limitations was
tolled under Maryland law.
- 6 -

-- 6 of 18 --

sodomized and threatened not to tell his mother by an
employee of BOOZ ALLEN who was known or in the
exercise of reasonable care should have been known to
BOOZ ALLEN as a person with serious emotional
disorders who had previously requested of BOOZ ALLEN
that he be returned to the United States as a result
of said emotional disorders.
(J.A. 32-33). Although not named in the amended complaint,
Davenport is the BAH employee who allegedly sexually assaulted
Baker. Davenport vehemently denies the allegations, but BAH
concedes for purposes of summary judgment we must assume that
Davenport engaged in such conduct. According to Baker, the
alleged sexual assault occurred while he was staying with Haugh
at a time when Woody was away on business in Moscow. During
this time, Davenport lured Baker to his own apartment in Bishkek
and sexually assaulted him.5
Based on the allegations in the amended complaint, Baker
claimed that BAH was negligent because it: (1) “[f]ailed to
adequately consider the reports” that Davenport was suffering
from emotional disorders which were likely to result in a sexual
assault; (2) “[f]ailed to foresee” that Davenport’s actions
against Baker would be carried out; (3) “[f]ailed to warn” or
provide notice to Woody of Davenport’s emotional disorders; and
5 Baker did not report the sexual assault to his mother.
Rather, he disclosed the sexual assault to his therapist some
time in early 1997. According to Baker, he did not disclose the
sexual assault to Woody because, at the time, he “didn’t trust
anybody.” (J.A. 207).
- 7 -

-- 7 of 18 --

(4) “[f]ailed to provide” Baker with adequate security. (J.A.
33).
On July 30, 2007, BAH filed a motion for summary judgment.
On December 19, 2007, the district court held a hearing on the
motion. At the conclusion of the hearing, the district court
granted the motion. On January 16, 2008, BAH filed a motion for
sanctions, which the district court denied on October 31, 2008.
Baker filed a timely notice of appeal, and BAH filed a timely
notice of cross-appeal.
II
Baker claims that the district court erred when it granted
summary judgment in favor of BAH on his negligence claims. More
specifically, he claims there are issues of fact regarding BAH’s
liability for the negligent hiring, retention, and supervision
of Davenport.
In a diversity action, the law of the forum court governs
the substantive issues and federal law governs the procedural
issues. Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002).
Thus, Maryland’s choice of law rules govern. Id.; Wells v.
Liddy, 186 F.3d 505, 521 (4th Cir. 1999). Maryland applies the
lex loci delicti rule in tort cases. Philip Morris, Inc. v.
Angeletti, 752 A.2d 200, 230 (Md. 2000). Under that rule, when
a tort occurs in another state, the substantive rights of the
- 8 -

-- 8 of 18 --

parties, even though they are domiciled in Maryland, are to be
determined by the law of the state in which the alleged tort
took place. Id. A tort occurs “where the injury was suffered,
not where the wrongful act took place.” Johnson v. Oroweat
Foods Co., 785 F.2d 503, 511 (4th Cir. 1986) (applying Maryland
law).
Baker’s alleged injuries were suffered in Kyrgyzstan, the
site of the sexual assault. Thus, Kyrgyz law applies, provided
the requirements of Rule 44.1 of the Federal Rules of Civil
Procedure are met. See Ferrostaal, Inc. v. M/V Sea Phoenix, 447
F.3d 212, 216 (3d Cir. 2006) (noting that where a party fails to
carry its burden of proving foreign law under Rule 44.1, the
forum law should apply); cf. The Hoxie, 297 F. 189, 190 (4th
Cir. 1924) (noting, in pre-Rule 44.1 case, that forum law
applies unless the party seeking to use foreign law establishes
that foreign law differs from forum law).
Federal Rule of Civil Procedure 44.1 controls
determinations of foreign law in federal court. It provides:
A party who intends to raise an issue about a foreign
country’s law must give notice by a pleading or other
writing. In determining foreign law, the court may
consider any relevant material or source, including
testimony, whether or not submitted by a party or
admissible under the Federal Rules of Evidence. The
court’s determination must be treated as a ruling on a
question of law.
- 9 -

-- 9 of 18 --

Fed. R. Civ. P. 44.1. Rule 44.1 provides courts with broad
authority to conduct their own independent research to determine
foreign law but imposes no duty upon them to do so. See Carey
v. Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988)
(“[Rule] 44.1 empowers a federal court to determine foreign law
on its own, but does not oblige it do so.”). Thus, the party
claiming foreign law applies carries both the burden of raising
the issue that foreign law may apply in an action and the burden
of proving foreign law to enable the district court to apply it
in a particular case. Cf. Whirlpool Fin. Corp. v. Sevaux, 96
F.3d 216, 221 (7th Cir. 1996) (holding that party waived
conflicts of law issue because it failed to fulfill its
obligation under Rule 44.1 “to provide the district court with
‘reasonable notice’ of his intention to raise an issue of
foreign law”). Where a party fails to satisfy either burden,
the district court should apply the forum state’s law.
Ferrostaal, 447 F.3d at 216.
In order to meet its burden of proving Kyrgyz law, BAH
proffered the July 25, 2007 declaration of a Kyrgyz lawyer,
Tatiana Ivaschenko. In her declaration, Ivaschenko stated that
Baker’s claims were without merit under Kyrgyz law, opining:
[A] legal entity shall be responsible for its
employee’s actions or inactions, if that employee has
caused harm to third parties in the course of the
performance of his or her employment obligations. . .
.
- 10 -

-- 10 of 18 --

Even if an employee were to cause harm to a third
party in the course of performance by that employee of
his or her employment obligations, an employer shall
not be liable for its employee’s actions or inactions
unless the predicate act[s], which must have resulted
in criminal sanctions, [were] completed upon the
employer’s order and control. . . .
In the Kyrgyz Republic, the civil courts will not
examine a claim for damages for buggery (defined as
sodomy) unless the fact of buggery has been
established in a criminal procedure . . . .
* * *
In sum, the legislation of the Kyrgyz Republic as of
1996 contains provisions, according to which, an
employer is only liable for damages ca[u]sed by its
employee to a third party only in the course of
performance by such employee of his/her employment
obligations or official duties. An employer cannot be
held responsible for a criminal act (i.e., buggery)
committed by the employee, unless the act is completed
following the order of the employer and under the
employer’s control. Thus, Booz Allen Hamilton Inc.
cannot be held liable for the facts alleged in the
Amended Complaint.
(J.A. 409-10).
In its decision granting BAH’s motion for summary judgment,
the district court, out of an abundance of caution, held that
Baker could not prevail under Kyrgyz (the locus of Baker’s
injuries), Maryland (the forum state), or Virginia law (where
decisions concerning Davenport’s employment were made). Baker
claims that Maryland law should apply because BAH failed to meet
its burden of proving Kyrgyz law and, therefore, Maryland law,
as the forum state’s law, applies. In particular, he claims
that the statutes referenced in the Ivaschenko declaration are
- 11 -

-- 11 of 18 --

not controlling and, in any event, do not fully explain the
breadth of Kyrgyz law.
We need not decide whether the district court erred in
examining Baker’s claims under Kyrgyz law. This is so because,
even accepting Baker’s invitation to apply Maryland law, Baker’s
negligence claims fail.
The district court rejected Baker’s negligence claims under
Maryland law, principally concluding that Baker failed to
establish that any negligent conduct by BAH proximately caused
Baker’s injuries. In so concluding, the district court
observed:
I’ve received no information in this record that would
support a conclusion that Booz Allen was on notice
that this employee had a proclivity or a high risk of
committing sexual attacks of any nature, much less
violent attacks. All I do have is some incidents of
obnoxious behavior--two instances of slapping someone,
and bitter complaints by the plaintiff’s mother to her
employer that this man should be sent home.
(J.A. 543).
Under Maryland law, a plaintiff alleging a negligence claim
must demonstrate “(1) that the defendant had a duty to protect
the plaintiff from injury, (2) that the defendant breached that
duty, (3) that the plaintiff suffered actual injury or loss, and
(4) that the defendant’s breach of duty proximately caused the
loss or injury.” Pendleton v. State, 921 A.2d 196, 204 (Md.
2007).
- 12 -

-- 12 of 18 --

In the negligent hiring, retention, and supervision
context, an employer has the duty to use reasonable care to
select employees competent and fit for the work assigned to them
and to refrain from retaining the services of an unfit employee.
Henley v. Prince George’s County, 503 A.2d 1333, 1341 (Md.
1986). The class of persons intended to be protected by the
imposition of this duty necessarily includes those members of
the public who would reasonably be expected to come in contact
with the employee in his performance of his duties. Id.
Proximate cause “involves a conclusion that someone will be
held legally responsible for the consequences of an act or
omission.” Peterson v. Underwood, 264 A.2d 851, 855 (Md. 1970).
To be a proximate cause for an injury, “the negligence must be
1) a cause in fact, and 2) a legally cognizable cause.”
Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 642 A.2d 219,
230 (Md. 1994) (citation and internal quotation marks omitted).
Causation-in-fact concerns the threshold inquiry of
“whether defendant’s conduct actually produced an injury.”
Peterson, 264 A.2d at 855. When two or more independent acts
bring about an injury, as alleged here by Baker, causation-in-
fact may be found if it is more likely than not that the
defendant’s conduct was a substantial factor in producing the
plaintiff’s injuries. Pittway Corp. v. Collins, 973 A.2d 771,
787 (Md. 2009).
- 13 -

-- 13 of 18 --

Once causation-in-fact is established, the proximate cause
inquiry turns to whether the defendant’s negligent actions
constitute a legally cognizable cause of the plaintiff’s
injuries. Id. This part of the causation analysis requires us
to consider whether the actual harm to the plaintiff falls
within a general field of danger that the defendant should have
anticipated or expected. Stone v. Chicago Title Ins. of Md.,
624 A.2d 496, 500 (Md. 1993). Legal causation is a policy-
oriented doctrine designed to be a method for limiting liability
after cause-in-fact has been established. Pittway, 973 A.2d at
787. The question of legal causation most often involves a
determination of whether the injuries were a foreseeable result
of the defendant’s negligent conduct. Id. at 788. Other public
policy considerations that may play a role in determining legal
causation include the remoteness of the plaintiff’s injury from
the defendant’s negligence and the extent to which the injury is
out of proportion to the defendant’s culpability. Id. Simply
put, the defendant is not liable if it appears highly
extraordinary and unforeseeable that the plaintiff’s injuries
occurred as a result of the defendant’s alleged tortious
conduct. Id.
In our view, the injury in this case (sexual assault)
simply was not a reasonably foreseeable injury arising from the
alleged negligent hiring, retention, and/or supervision of
- 14 -

-- 14 of 18 --

Davenport. The injury suffered by Baker was criminal sexual
assault. Baker argues that this sexual assault was a
foreseeable result of Davenport’s “explosive” behavior in the
workplace. We disagree. Without question, Davenport’s demeanor
at work was offensive. Slapping fellow employees is deplorable.
However, BAH reasonably can assume that an employee who has
slapped fellow employees on occasion will not sexually assault
the child of an independent contractor of BAH. Therefore, BAH
could not reasonably anticipate that Davenport’s behavior was an
inevitable prelude to sexual assault if his actions did not
clearly and unmistakably threaten particular criminal activity
that would have put a reasonable employer on notice of an
imminent risk of harm to a victim. Slapping a fellow employee
simply does not inexorably lead to criminal sexual assault.
It does not follow that every time an employee slaps
another employee the employer has to fire the aggressor out of
fear that the employee might rape another employee or person.
But this is exactly what Baker is seeking this court to hold.
Such a holding would undoubtedly tear the concept of proximate
cause from its moorings. Accordingly, the district court did
not err when it concluded that Baker’s negligence claims failed
under Maryland law.
- 15 -

-- 15 of 18 --

III
BAH appeals the district court’s denial of its motion for
sanctions. BAH sought sanctions under Rule 11 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 1927. BAH claims that
sanctions were appropriate because: (1) Baker did not conduct an
adequate pre-filing investigation; and (2) Baker refused to
abandon his negligence claims after it was clear he had no
chance of success. We review the district court’s grant or
denial of a motion for sanctions for an abuse of discretion.
Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999).
Under Rule 11, “a complaint containing allegations
unsupported by any information obtained prior to filing, or
allegations based on information which minimal factual inquiry
would disprove, will subject the author to [Rule 11] sanctions.”
In re Kunstler, 914 F.2d 505, 516 (4th Cir. 1990). Moreover,
Rule 11 empowers the district court to sanction a party or
lawyer for insisting on a position after it is no longer
tenable. Morris v. Wachovia Securities, Inc., 448 F.3d 268, 279
(4th Cir. 2006).
Section 1927 provides in relevant part:
Any attorney . . . who so multiplies the proceedings
in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess
costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.
- 16 -

-- 16 of 18 --

28 U.S.C. § 1927. The Supreme Court has recognized that § 1927
“does not distinguish between winners and losers, or between
plaintiffs and defendants.” Roadway Express, Inc. v. Piper, 447
U.S. 752, 762 (1980). Moreover, “[t]he statute is indifferent
to the equities of a dispute and to the values advanced by the
substantive law.” Id. Instead, the statute is “concerned only
with limiting the abuse of court processes.” Id. For this
reason, a court considering the propriety of a § 1927 award must
focus “on the conduct of the litigation and not on its merits.”
DeBauche v. Trani, 191 F.3d 499, 511 (4th Cir. 1999).
BAH claims that Baker falsely alleged in his complaint
that: (1) Davenport had serious emotional disorders; (2)
Davenport had previously requested that he be returned to the
United States as a result of the disorders; (3) BAH failed to
consider reports of Davenport’s disorders; and (4) the sexual
assault was caused by Davenport’s disorders. BAH also claims
that the frivolous nature of Baker’s claims became all the more
apparent following Baker’s deposition. Finally, BAH takes issue
with the manner in which Woody handled certain aspects of the
case.
In this case, the district court did not abuse its
discretion in denying BAH’s motion for sanctions. Baker
presented evidence that Davenport was far from a model employee,
one capable of committing deplorable acts, including slapping
- 17 -

-- 17 of 18 --

- 18 -
employees. Given his propensity for slapping employees and
committing other unruly acts in the workplace, it was not
objectively unreasonable for Baker to claim that Davenport
suffered from emotional disorders and that said disorders
proximately caused the sexual assault of Baker. Finally, we
have reviewed Woody’s conduct and conclude that the district
court acted well within its discretion when it decided to
decline to sanction her either under Rule 11 or § 1927.
IV
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED

-- 18 of 18 --