FILED
NOT FOR PUBLICATION JUL 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVELYN DAVIDSON, No. 11-17572
Plaintiff - Appellant, DC No. 2:10 cv-2502 FCD
v.
MEMORANDUM*
CARL E. KORMAN; PETE GEREN;
JOHN McHUGH,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Submitted June 14, 2013**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and WOOD, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Kimba M. Wood, Senior United States District Judge
for the Southern District of New York, sitting by designation.
Evelyn Davidson was employed by the Army Corps of Engineers (“ACE”)
as an attorney. She claims that she was fired in retaliation for challenging a
racially and sexually hostile work environment, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She further alleges that her
immediate supervisor, Carl Korman, made various misrepresentations that
constitute common-law fraud. Her Title VII claim was dismissed, on a motion for
judgment on the pleadings, for failure to state a prima facie case that she engaged
in a protected activity. Her fraud claim was dismissed as preempted by the Federal
Tort Claims Act, 28 U.S.C. §§ 2679(a), 2679(b)(1) (“FTCA”). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
1. Davidson failed to allege a prima facie case that she was fired in
retaliation for opposing what she reasonably believed constituted a racially and
sexually hostile work environment, in violation of Title VII. See 42 U.S.C.
§ 2000e-3(a); Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006). The relevant
1
Dismissals under Fed. R. Civ. P. 12(b)(1) and 12(c) are subject to de
novo review. See Zuress v. Donley, 606 F.3d 1249, 1252 (9th Cir. 2010), cert.
denied, 131 S. Ct. 3056 (2011); MacDonald v. Grace Church Seattle, 457 F.3d
1079, 1081 (9th Cir. 2006). Our review of a Rule 12(c) dismissal is limited to
“allegations contained in the pleadings, exhibits attached to the complaint, and
matters properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202, 1212
(9th Cir. 2012); see Fed. R. Civ. P. 12(d); Dworkin v. Hustler Magazine, Inc., 867
F.2d 1188, 1192 (9th Cir. 1989).
2
facts concern Davidson’s interactions with two individuals: Patricia Hawkins, a
fellow ACE attorney-employee, and Korman, Davidson’s supervisor.
Hawkins allegedly made two racist comments: (1) Hawkins opined that the
young son of an African-American ACE employee received a particular
commendation plaque from a judge only because the judge was black; and (2)
Hawkins told Davidson that Hawkins had trouble working with blacks when she
practiced law in Hawaii.2 No reasonable person would consider such remarks
made by a co-worker “an unlawful employment practice of an employer” rather
than “an act of discrimination by a private individual.” Silver v. KCA, Inc., 586
F.2d 138, 141 (9th Cir. 1978). Moreover, no reasonable person would consider
Hawkins’ isolated and offhand comments as working a discriminatory “change in
the terms and conditions of [Davidson’s] employment.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
Davidson also alleges that, during what appears to be a single conversation,
Korman told her about his uncle’s phone sex business, that he started to tell her
about one of the uncle’s sexual exploits, and that he told her that he prevented the
ACE from disciplining an employee who was caught looking at nude photos at
work because Korman did not think the employee had violated the law. That
2
These comments were not directed at Davidson, who is Caucasian.
3
conversation is “at worst an ‘isolated inciden[t]’ that cannot remotely be
considered ‘extremely serious,’ as [the Supreme Court’s] cases require.” Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (per curiam) (first alteration
in original) (quoting Faragher, 524 U.S. at 788). And, like Hawkins’ racist
comments, Korman’s sexual comments bore no nexus to the terms or conditions of
Davidson’s continued employment at the ACE. In short, no reasonable person
would consider the conversation with Korman as rising to the level of creating a
sexually hostile work environment. The district court properly granted
Defendants’ motion for judgment on the pleadings as to this claim.
2. The district court properly dismissed Davidson’s fraud claim because
it was preempted by the FTCA.3 As the court observed, the FTCA is the exclusive
remedy for torts committed by federal employees while acting within the scope of
their duties. See 28 U.S.C. §§ 2679(a), 2679(b)(1). In such cases, “the FTCA is
the exclusive mode of recovery for the tort of a Government employee even when
3
This case was originally filed in the Northern District of California
and was transferred from that district to the Eastern District of California. See
Davidson v. Korman, No. 4:09 cv-1695 SBA (N.D. Cal. Dec. 1, 2009). Before the
transfer, however, the transferor court dismissed Davidson’s fraud claims against
Korman. The transferee court then dismissed the Title VII claim against Korman
because he was not the head of a department, agency, or unit, as required by Title
VII. Davidson does not appeal that portion of the decision below. She does,
however, appeal the transferor court’s dismissal of her fraud claim against
Korman.
4
the FTCA itself precludes Government liability.” Meridian Int’l Logistics, Inc. v.
United States, 939 F.2d 740, 743 n.1 (9th Cir 1991) (internal quotation marks
omitted). Although Davidson points to the manner in which Korman fired her as
evidence of conduct outside the scope of duty, she has waived the dispositive
question: whether Korman was acting outside the scope of duty when he
committed the alleged fraud. See Fed. R. App. P. 28(a)(9)(A) (requiring that
Appellant’s Brief contain “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies”).
The manner in which Korman fired Davidson simply has no bearing on whether
the alleged fraud was committed within the scope of Korman’s duties. See 28
U.S.C. § 2679(b)(1).4
AFFIRMED.
4
Davidson also argues, in the alternative, that she has substantially
complied with FTCA’s administrative exhaustion requirements. We need not
reach this issue because Davidson has not alleged a viable FTCA claim.
5