The opinion
FILED
NOT FOR PUBLICATION
DEC 24 2013
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM WALLACE CAMPBELL, No. 10-36087
Plaintiff - Appellant, D.C. No. 2:10-cv-00851-MJP
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court,
Western District of Washington
Hon. Marsha J. Pechman, Chief District Judge
Argued and Submitted December 2, 2013
Seattle, Washington
Before: TALLMAN and BEA, Circuit Judges, and MURPHY, District Judge.**
William Campbell appeals the district court’s grant of summary judgment in
favor of the United States on his claims of vicarious liability and negligent supervision
arising under the Federal Tort Claims Act (“FTCA”) for damages he suffered from
alleged sexual misconduct by an employee of the Department of Veteran Affairs
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen Joseph Murphy, III, United States District Judge for the
Eastern District of Michigan, sitting by designation.
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Puget Sound Health Care System (“the VA”), Dr. Lori Phelps. We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.
We review a district court’s refusal to permit further discovery before ruling on
a summary judgment motion for abuse of discretion. Michelman v. Lincoln Nat. Life
Ins. Co., 685 F.3d 887, 892 (9th Cir. 2012). A district court abuses its discretion only
if the party requesting a continuance can show that allowing additional discovery
would have precluded summary judgment. Id.
“If a nonmovant shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the court may. . . allow time
to obtain affidavits. . . or to take discovery.” Fed. R. Civ. P. 56(d). The district court
made no ruling on whether or not Campbell was entitled to additional discovery
because he failed sufficiently to request or move for further discovery. Campbell’s
appellate counsel now argues that the court should have construed what he terms
“Campbell’s repeated requests for more discovery” as such a motion. “[R]eferences
in memoranda and declarations to a need for discovery do not qualify as motions
under [Rule 56(d)].” Brae Transp., Inc v. Coopers & Lybrand, 790 F.2d 1439, 1443
(9th Cir. 1986).
Campbell did not put the district court on notice that he was requesting more
discovery. In addition, Campbell made no showing that additional discovery would
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have precluded summary judgment and, indeed, his counsel makes no such argument
in the instant appeal.
Campbell also contends that the district court improperly granted the
government’s motion on its merits. We review a district court’s grant of summary
judgment de novo. Shelley v. Geren, 666 F.3d 599, 604 (9th Cir. 2012). We must
determine, viewing the evidence in the light most favorable to the non-moving party,
whether there are any genuine issues of material fact and whether the district court
correctly applied the relevant substantive law. Oswalt v. Resolute Indus., Inc., 642
F.3d 856, 859 (9th Cir. 2011). Here, Washington law governs the determination of
liability, and we review the application of such state law de novo. 28 U.S.C. §
1346(b); Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir. 1986).
In Washington, once an underlying tort is established, the employer will be held
vicariously liable if the employee was acting within the scope of his employment.
Robel v. Roundup Corp., 59 P.3d 611, 620 (Wash. 2002). The test for determining
whether an employee has acted within the scope of her employment is “whether the
employee was fulfilling his or her job functions at the time he or she engaged in the
injurious conduct.” Robel, 59 P.3d at 620, and has also been stated as “whether he was
engaged at the time in the furtherance of the employer’s interest.” Dickinson v.
Edwards, 716 P.2d 814, 819 (Wash. 1986) (quoting Elderr v. Cisco Constr. Co., 324
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P.2d 1082, 1085 (Wash. 1958)).
The Washington Supreme Court has found that “where an employee’s acts are
directed toward personal sexual gratification, the employee’s conduct fall outside the
scope of his or her employment.” Robel, 59 F.3d at 621. The district court correctly
determined that Phelps’ acts fell outside the scope of her employment, and, therefore,
that the government is not vicariously liable.
Simmons, 805 F.2d 1363, is distinguishable from the instant case based on its
facts. The district court here correctly reasoned that Phelps’ alleged acts took place
outside the scope of her employment because she saw Campbell as a patient for only
seventeen days and their sexual relationship did not take place until well after that
time. Therefore, the relationship at bar is unlike the one in Simmons where the
evidence showed that the therapist engaged in sexual acts with his patient during
therapy sessions which lasted for five years. Simmons, 805 F.2d at 1370-71.
In addition, Campbell’s argument that the grant of summary judgment should
be reversed because the government adduced no evidence to show that Phelps’ acts
emanated from a wholly personal motive is unavailing. Campbell’s assertion that
Phelps’ actions could have been “triggered by some misguided attempt at therapy” is
completely speculative.
Campbell also contends that the district court erred in granting summary
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judgment to the government on the negligent supervision claim. In Washington, “[t]he
theory of negligent supervision creates a limited duty to control an employee for the
protection of third parties, even where the employee is acting outside the scope of
employment.” Niece v. Elmview Group Home, 929 P.2d 420, 427 (1997) (en banc).
“An employer is not liable for negligently supervising an employee whose conduct
was outside the scope of the employment unless the employer knew, or in the exercise
of reasonable care, should have known the employee presented a risk of danger to
others.” Thompson v. Everett Clinic, 860 P.2d 1054, 1058 (Wash. Ct. App. 1993).
Viewing the evidence in the light most favorable to Campbell, the district court
correctly found that no triable issue of fact existed as to whether the government knew
or should have known that Phelps presented a risk of danger to Campbell. The
evidence shows that Phelps’ direct supervisor did not know anything about the sexual
relationship and appropriately responded to the only information he received from
Phelps about the relationship, which is that she exchanged an email with him after his
discharge and that she was attracted to him. The district court also correctly concluded
that the supervisor’s absence for ten of the seventeen days of Campbell’s
hospitalization was not a ground for negligent supervision because it is undisputed
that the sexual relationship did not begin until over a year after this period. Campbell
also fails to raise a triable issue of fact that Dr. VanGoda should have known about
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the relationship and could be liable under a negligent supervision theory.
The district court thus correctly granted summary judgment to the government.
AFFIRMED.
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