Santiago-Ramirez v. Secretary of Department of Defense of the U.S.A.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1394

LYNETTE SANTIAGO-RAMIREZ, ET AL.,

Plaintiffs - Appellants,

v.

SECRETARY OF DEPARTMENT OF DEFENSE
OF THE U.S.A., ET AL.,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Boyle,* Senior District Judge.

John Ward-Llamb as for appellants.

Isabel Mu oz-Acosta, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, was on brief for

appellees.

August 16, 1995

* Of the District of Rhode Island, sitting by designation.

BOYLE, Senior District Judge. The questions presented
BOYLE, Senior District Judge.

on appeal in this case are the following: whether this Court's

statement, in its prior reversal of the district court, that the

complaint might be read to state a cause of action for

intentional infliction of emotional distress constitutes the "law

of the case" which binds the district court and, if not, whether

the district court's subsequent dismissal was proper. Because we

find that this Court did not previously express its view as to

the law applicable to this case and that the district court

correctly dismissed the case, we affirm.

I. BACKGROUND
I. BACKGROUND

We summarize the facts only briefly as they are laid

out in detail in our prior opinion. See Santiago Ram rez v.

Secretary of the Department of Defense, 984 F.2d 16 (1st Cir.

1993). Because this is a review of a grant of summary judgment,

we view the facts in a light most favorable to the non-movant.

See Coyne v. Taber Partners, 53 F.3d 454, 457 (1st Cir. 1995).

Appellant, Santiago, worked as a cashier at Fort Buchanan's Army

Post Exchange Store. The store's policy prohibited employees

from carrying merchandise through the front door. On June 29,

1990, Santiago and a co-employee violated this policy when they

removed bags containing store merchandise through the front

entrance. They placed these bags in the trunk of the co-

employee's car. Unbeknownst to Santiago, the bags contained

stolen merchandise. The Safety and Security Manager and

Santiago's supervisor questioned her for a total of 45 minutes

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concerning this breach of store policy. Santiago told them that

she did not know that the merchandise was stolen but was aware of

the store's regulation that prohibited employees from carrying

merchandise through the front door. She was later terminated for

violating this regulation. The District Court granted the

defendant's motion to dismiss based on its finding that Santiago

did not give the defendant adequate notice of her suit as

required by the Federal Tort Claims Act. See 28 U.S.C. 2675

(1994). Santiago appealed.

We found that a letter Santiago had sent to the

defendants satisfied the statute's notice requirement. See

Santiago, 984 F.2d at 19. Because the government is not immune

from suit based on a claim of intentional infliction of emotional

distress, we stated that the complaint "might be read to plead a

cause of action for intentional infliction of emotional

distress." Id. at 20. We, therefore, remanded to the District

Court for a determination as to whether Santiago's complaint

could be read to state a cause of action for intentional

infliction of emotional distress. Santiago, 984 F.2d at 19. See

also, 28 U.S.C. 2680(h) (1994).

The district court again granted the defendant's motion

to dismiss, holding that under Puerto Rico law the facts alleged

in the complaint did not state a claim for intentional infliction

of emotional distress and the action was thus barred by Puerto

Rico's Workmen's Accident and Compensation Act. Santiago has

again appealed.

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II. DISCUSSION
II. DISCUSSION

The Law of the Case
The Law of the Case

Santiago asserts that this Court held that her claim

could go forward on the theory of intentional infliction of

emotional distress. She claims that the district court was bound

by this ruling and could not subsequently find that the claim

based on this theory was without merit.

The doctrine of the law of the case directs that a

decision of an appellate court as to a matter of law governs that

issue during all subsequent stages of litigation. See Commercial

Union Insurance Co. v. Walbrook Insurance Co. Ltd., 41 F.3d 764,

769 (1st Cir. 1994) (citing United States v. Rivera-Mart nez, 931

F.2d 148 (1st Cir.), cert. denied, U.S. , 112 S. Ct. 184

(1991)). "When the reviewing court, in its mandate, prescribes

that a court shall proceed in accordance with the opinion of the

reviewing court, it incorporates its opinion into its mandate."

Id. at 770 (citing Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.),

cert. denied U.S. , 113 S. Ct. 125 (1992)).

Here, the Court of Appeals has issued no such mandate.

Our prior opinion simply stated that the appellant's claim might

be read to state a cause of action for intentional or negligent

infliction of emotional distress. See Santiago-Ram rez, 984 F.2d

at 18. We remanded to the district court for a determination of

this issue. See id. at 20, 21. Moreover, this Court not only

refused to direct the district court on this issue, it

specifically stated that "[t]he present disposition is without

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prejudice of further motion disposition under Fed. R. Civ. P. 56

once the parties have had an opportunity of addressing the issues

consistently with this opinion." Id. Thus, this Court did not

determine that Santiago's claim for intentional infliction of

emotional distress had merit. The district court was free to

find that the complaint failed to state a claim under that

theory.

Dismissal for Failure to State a Claim
Dismissal for Failure to State a Claim

We must now consider whether the lower court properly

dismissed, for a second time, Santiago's claims for intentional

infliction of emotional distress. Santiago's claim is brought

under the Federal Tort Claims Act (FTCA). See 28 U.S.C. 2671,

et seq. (1994). The FTCA prescribes that the government can only

be held liable "in accordance with the law of the place where the

act of omission occurred." 28 U.S.C. 1346(b)(1993).

Puerto Rico has codified the law dealing with tort

claims by employees against their employers in the Puerto Rico

Workmen's Compensation Act (PRWACA). See P.R. Laws Ann. tit. 11,

1 et seq. When an employer insures his or her employees in

accordance with the PRWACA, the compensation provided by the act

becomes the exclusive remedy available to the plaintiff-employee.

See P.R. Laws Ann. tit. 11, 20. According to Puerto Rico case

law, however, intentional torts fall outside the PRWACA's

compensatory scheme. See Pacheco-Pietri v. Commonwealth of

Puerto Rico, RE-89-524 Certified. Translation (S.Ct.P.R. 1992);

Odriozola v. Superior Cosmetic Dist. Corp., 116 D.P.R. 485

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(1985). Because intentional torts are excluded, we must

determine whether Santiago's complaint states a cause of action

for a intentional tort; here the tort of intentional infliction

of emotional harm.

Because there is limited authority in Puerto Rico

concerning the elements of the tort of intentional infliction of

emotional harm, we must look to other jurisdictions. The tort of

intentional infliction of emotional harm exists when "one who by

extreme and outrageous conduct intentionally or recklessly causes

severe emotional distress to another." Restatement (Second) of

Torts 46 (1965). See also Thorpe v. Mutual of Omaha Ins. Co.,

984 F.2d. 541, 545 (1st. Cir. 1993)(conduct must be "extreme and

outrageous," "beyond all possible bounds of decency," and

"utterly intolerable in a civilized community"). Moreover,

courts have allowed employers some latitude in investigating

possible employee misconduct. See Starr v. Pearle Vision, Inc.,

54 F.3d 1548, 1558 (10th Cir. 1995). In Starr, a 1995 case in

the tenth circuit, the court held that a plaintiff's allegations

that her employer yelled at her, pushed her back down into her

chair, touched her arm and blocked her exit from the room during

questioning, did not rise to the level of outrageousness required

to state a cause of action for intentional infliction of

emotional harm.

Here the complaint is quite fact specific. It alleges

that Santiago was "questioned during around (sic) forty-five (45)

minutes and was shown a videotape supposedly taken at the store

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where she worked." Complaint at 2. She was told that if she did

not cooperate with the investigation "all of this could be taken

to the F.B.I." See id. After the interview, she signed a

statement. See id. These acts as alleged are well within the

foreseeable consequences of her actions and fall far short of the

outrageousness needed to support a cause of action for

intentional infliction of emotional harm. See Restatement

(Second) of Torts 46 (1965). See also Thorpe, 984 F.2d at 545;

Starr, 54 F.3d at 1558.

The Supreme Court of Puerto Rico dealt with similar

factual circumstances in Pacheco-Pietri v. Commonwealth of Puerto

Rico, RE-89-524 Certified. Translation (S.Ct.P.R. 1992).1 In

Pacheco-Pietri the plaintiff was a corrections officer who was

required to submit to urinalysis. See id. at 10. The forensic

office mistakenly mixed the plaintiff's sample with that of

another employee which tested positive for cocaine. See id. As

a consequence, administrative procedures were taken against the

plaintiff including the requirement that the plaintiff submit to

drug-addiction treatment at the Anti-Addiction Services

Department. See id. After the mistake was discovered, the

plaintiff filed a complaint seeking damages for negligence and

emotional distress. See id. at 12.

The Supreme Court of Puerto Rico upheld that Superior

Court's judgment dismissing the complaint. See id. at 23. The

1 We rely on the certified translation of Pacheco-Pietri v.

Commonwealth of Puerto Rico provided by the parties since

publication in the official English-language reporter is pending.

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Supreme Court, although not directly addressing the issue of

whether this was an intentional tort, found that the incident

constituted a labor accident covered by Article 20 of the Puerto

Rico Workmen's Accident Compensation Act and not intentional

conduct. See id. The court determined that the issue turned on

whether the accident occurred in the course of employment. See

id. at 19. It stated that "when the employee suffers an accident

in the performance of a requirement imposed by the employer for

the continuity of the employment, the same shall be considered as

having occurred in the course of employment." Id. The court

found that because the drug testing and subsequent treatment were

part of the requirements for the plaintiff's continued

employment, the accident and injuries stemming therefrom were

solely compensable under the PRWACA and thus any civil action was

barred. See id. at 23.

Here, the Fort Buchanan's Army Post Exchange Store had

a policy, similar to the drug-testing policy in Pacheco-Pietri,

prohibiting employees from using the front door to transport

merchandise. When Santiago was discovered to have violated this

policy, she was questioned by her superiors as part of her

continued employment. There is no allegation that the

questioning was abusive, extreme or outrageously intimidating.

Plaintiff's experience is not unlike that experienced by the

plaintiff in Pacheco-Pietri. Santiago claims, without any

suggestion either that the questioning was abusive or extreme in

light of the circumstances, that the actions of her employers

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constituted an intentional infliction of emotional harm. Because

this questioning was a necessary incident of employment for an

employee who had broken the rules, under Puerto Rican law it

cannot be said to be intentionally tortious. See Pacheco-Pietri

v. Commonwealth of Puerto Rico, RE-89-524 Cert. Translation

(S.Ct.P.R. 1992), and Odriozola v. Superior Cosmetic Dist. Corp.,

116 D.P.R. 485 (1985). III. CONCLUSION
III. CONCLUSION

The district court's conclusion that Santiago's

complaint does not state a claim for intentional infliction of

emotional harm is not in error. We affirm.

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