Pamela A. Doyle-Penne v. Maryam R. Muhammad; United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PAMELA A. DOYLE-PENNE,
Plaintiff-Appellant,
v.
No. 99-2101
MARYAM R. MUHAMMAD; UNITED
STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge;
Gerald Bruce Lee, District Judge.
(CA-99-862-A)
Argued: June 7, 2000
Decided: August 4, 2000
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Brian Wayne Cubbage, PALEOS & KRIEGER, P.C.,
Alexandria, Virginia, for Appellant. Leslie Bonner McClendon,
Assistant United States Attorney, Alexandria, Virginia, for Appellees.

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ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria,
Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This suit arises from a workplace dispute between two federal
employees. Because the altercation occurred within the scope of
employment, the district court substituted the United States as party
defendant. The district court then dismissed plaintiff's various claims.
Finding no error, we affirm.
I.
On December 21, 1998, Pamela Doyle-Penne and Maryam
Muhammad engaged in a workplace altercation. At the time, Doyle-
Penne was employed as a GM-13 Project Manager with the United
States Department of Defense, Office of Economic Adjustment, in
Arlington, Virginia. Muhammad was employed in the same office as
a GS-7 Management and Program Assistant. Part of Muhammad's
duties included answering telephone calls.
The underlying dispute occurred during normal business hours.
Doyle-Penne was on the telephone when Muhammad rang her over
the intercom. Muhammad told Doyle-Penne that a call was waiting
for her on another line. Muhammad hung up before Doyle-Penne
could tell her that she was not available to take the call. Doyle-Penne
objected to Muhammad's curt manner in transferring the call. She
proceeded down the hall to discuss with Muhammad the proper man-
ner of handling intra-office telephone calls. The conversation's level
of civility quickly deteriorated. Doyle-Penne contends that Muham-
mad pointed her finger at her face, saying: "Don't you raise your
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voice at me." Doyle-Penne admits that, at this point, she "swatted"
Muhammad's finger away from her face. Doyle-Penne alleges that
Muhammad responded by pinning her against an office wall and
repeatedly punching her in the chest.
Doyle-Penne initiated two suits against Muhammad in Virginia
state court. The first suit alleged common-law torts of assault and bat-
tery. The second suit requested an injunction against further abuse by
Muhammad. Both suits were subsequently removed to federal district
court.
The United States moved to substitute itself as defendant in the tort
suit pursuant to 28 U.S.C. § 2679(d)(1) (1994). The United States cer-
tified that Muhammad was acting within the scope of her employment
at the time the altercation occurred. The district court granted the gov-
ernment's motion and dismissed Doyle-Penne's tort claims against
Muhammad. The court then granted the United States' motion to dis-
miss the tort claims against the government. The district court deter-
mined that the government had not waived its sovereign immunity for
intentional torts. See Federal Torts Claims Act, 28 U.S.C. § 2680(h)
(1994).
The district court also allowed Doyle-Penne to amend her com-
plaint to allege constitutional tort claims against Muhammad in her
personal capacity. The amended complaint alleged that Muhammad's
conduct violated Doyle-Penne's Fourth, Fifth, and Eighth Amend-
ment rights. The district court granted the United States' motion to
consolidate the second suit (seeking an injunction) with Doyle-
Penne's amended complaint. The United States then moved to dismiss
the amended complaint. The court granted the motion after finding
that Doyle-Penne's allegations, even if true, did not rise to the level
of a constitutional tort. The district court also dismissed Doyle-
Penne's request for equitable relief. Doyle-Penne appeals.
II.
A.
Doyle-Penne contends that the district court erred in substituting
the United States as party defendant because Muhammad was not act-
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ing within the scope of her employment during the altercation. We
disagree. Virginia respondeat superior law governs this determination
because the altercation occurred in Arlington, Virginia. See Gutierrez
de Martinez v. DEA, 111 F.3d 1148, 1156 (4th Cir. 1997) (citing
Jamison v. Wiley, 14 F.3d 222, 227 n.2 (4th Cir. 1994) ("[W]hether
particular conduct was `within the scope of employment' for purposes
of Westfall Act immunity was to be determined not by reference to
a uniform body of federal common law, but by reference to the
respondeat superior law of the state in which the conduct occurred.")).
Virginia courts construe scope of employment broadly, holding
that even intentional torts may be within the scope of employment.
See Plummer v. Center Psychiatrists, Ltd., 476 S.E.2d 172, 174-75
(Va. 1996); Commercial Business Sys., Inc. v. BellSouth Servs., Inc.,
453 S.E.2d 261, 266 (Va. 1995). Since employers rarely instruct their
employees to commit intentional torts, Virginia law does not focus
the scope-of-employment inquiry on the motive of the employee who
committed the tort. Instead, Virginia law considers whether the events
that led to the tort naturally could have arisen out of the employee's
performance of his duties. See Commercial Business Sys., 453 S.E.2d
at 266.
This dispute arose out of Muhammad's performance of her duties.
The dispute occurred during a normal business day, inside the offices
of the Department of Defense where both parties were employed. The
altercation was caused by Muhammad transferring a telephone call to
Doyle-Penne. Transferring calls was part of Muhammad's job.
Indeed, few things are as synonymous with office routine as the use
of the telephone system. Finally, the dispute occurred when Doyle-
Penne, a more senior employee, attempted to correct a deficiency in
Muhammad's performance of her job.
Having correctly concluded that Muhammad's conduct was within
the scope of her employment, the district court substituted the United
States as party defendant. The district court then properly dismissed
Doyle-Penne's common-law tort claims of assault and battery. The
Federal Torts Claims Act states plainly that the government does not
waive its sovereign immunity for intentional torts. See 28 U.S.C.
§ 2680(h) (1994) ("The provisions of this chapter . . . shall not apply
to . . . [a]ny claim arising out of assault, battery, false imprisonment,
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. . . ."). Indeed, Doyle-Penne conceded as much before the district
court.
B.
In addition, Doyle-Penne argues that the district court erred in dis-
missing her constitutional tort claims. We disagree. Doyle-Penne's
constitutional claims are little more than embellished versions of her
common-law tort claims. The district court examined each of these
constitutional claims and correctly rejected her various attempts at
artful pleading. See Daniels v. Williams, 474 U.S. 327, 332 (1986)
("Our Constitution . . . does not purport to supplant traditional tort law
in laying down rules of conduct to regulate liability for injuries that
attend living together in society."). With respect to Doyle-Penne's
individual constitutional claims, we adopt the reasoning of the district
court in rejecting each of them. See Doyle-Penne v. Muhammad, No.
99-722-A (E.D. Va. July 30, 1999).
C.
Finally, Doyle-Penne argues that the district court improperly dis-
missed her claim for equitable relief. We disagree. Injunctions are an
extraordinary remedy issued to prevent future wrongs. See WTAR
Radio-TV Corp. v. Virginia Beach, 223 S.E.2d 895, 898 (Va. 1976).
Here Doyle-Penne complains of an isolated incident, and has made no
allegation that the conduct will continue to occur. While previous
conduct may raise an inference that such conduct will be repeated, a
"mere inference does not support an apprehension with reasonable
probability such as would justify imposition of a judicial sanction."
Id. at 898. Thus, the district court properly dismissed Doyle-Penne's
request for equitable relief.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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