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OWENS v. TURNAGE

March 21, 1988

Denise Owens, Plaintiff,
v.
Mr. Thomas Turnage, et al., Defendants



The opinion of the court was delivered by: SAROKIN

 In this action by a former Veterans Administration hospital employee charging sexual harassment, defendants Vincent Lisi, John Velasquez, and John Hill move to dismiss plaintiff's reamended complaint or, alternatively, for summary judgment. The court denies defendants, motion.

 At all times relevant to this action, plaintiff Denise Owens was a clerical worker at the Veterans Administration Medical Center in East Orange, NJ. On October 21, 1985, plaintiff commenced this action by filing a complaint alleging repeated sexual harassment by Dr. William Lowe, a staff physician at the hospital. The complaint alleged further that certain supervisory personnel at the hospital ignored plaintiff's complaints of harassment and ridiculed her for making such reports. The complaint sought damages under the United States Constitution, Title VII of the Civil Rights Act, 42 U.S.C. § 1983, the New Jersey Constitution, and the common law of New Jersey.

 By order dated July 31, 1986, the Hon. Herbert J. Stern dismissed plaintiff's Title VII claims as to all defendants except Thomas Turnage, the head of the Veterans Administration; dismissed plaintiff's other federal claims as to all defendants; and denied, in substantial part, defendants, motion to dismiss plaintiff's state law claims. *fn1"

 The Third Circuit affirmed the court's ruling as to the dismissal of the Title VII claims against all defendants except Turnage; the dismissal of other federal claims against all defendants; and the denial of the motion to dismiss the state law claims against Dr. Lowe. Owens v. United States, 822 F.2d 408 (3d Cir. 1987). The court remanded for further proceedings as to plaintiff's state law claims against the supervisory defendants. The court concluded that plaintiff's current pleadings did not allow for a ruling as to these defendants, claims of absolute immunity under Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959) and Araujo v. Welch, 742 F.2d 802 (3d Cir. 1984). Owens, 822 F.2d at 412. The court explained:

 
Whether each official is entitled to immunity depends in part upon the duties and tortious acts with which he is charged. The record before us gives almost no indication of the supervisory responsibilities of each of the supervisory defendants and of the relative importance of those responsibilities with respect to Owens. The record also does not make entirely clear the nature of the verbal acts with which each of the supervisory defendants is charged. Until these responsibilities and allegations are set forth with greater specificity, we do not believe that under the circumstances of this case we can make an informed decision on the state claims against the supervisory defendants. Accordingly, we will remand these claims to the district court so that Owens may amend her complaint to assert with greater specificity the responsibilities of each of the supervisory defendants and the acts that each allegedly committed.

 Id. at 412 (footnote omitted).

 On October 16, 1987, plaintiff filed a reamended complaint and jury demand including Vincent Lisi, Jose Velazquez, and John Hill as supervisory defendants. *fn2" These defendants move to dismiss the reamended complaint or, alternatively, for summary judgment on the basis of claimed absolute immunity.

 DISCUSSION

 In Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959), the Supreme Court granted to federal employees absolute immunity from certain state law tort actions. This absolute immunity is available only "when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature." Westfall v. Erwin, 484 U.S. 292, 56 U.S.L.W. 4087, 4089, 98 L. Ed. 2d 619, 108 S. Ct. 580 (1988); see, e.g., Owens v. United States, 822 F.2d 408, 410 (3d Cir. 1987) (stating that absolute immunity applies only if the official act involves a discretionary function and is "within the outer perimeter" of the official's duties). The court applies these legal standards to the allegations in plaintiff's reamended complaint. *fn3"

 I. Mr. Lisi and Mr. Velasquez

 Mr. Lisi, Chief of Employee Relations at the hospital, was plaintiff's immediate supervisor. Reamended Complaint and Jury Demand, Third Count at para. 7; Affidavit of Vincent Lisi at paras. 2, 5.

 Plaintiff alleges that she complained to Mr. Lisi about Dr. Lowe's repeated sexual harassment. Reamended Complaint and Jury Demand, Third Count at para. 8. The ...


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