Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
On June 20, 2019, a federal prison in Florence, Colorado, conducted a semiannual training exercise. All plaintiffs and defendants were Bureau of Prisons employees at the time.
The training exercise simulated a hostage situation in the prison’s administrative building. When the exercise began, plaintiffs were in the business office with three other individuals. The plaintiffs, following policy, locked themselves in a small cashier’s cage inside the business office.
The defendants, conducting a secondary search of the building, tried to communicate with the individuals in the cashier’s cage, including the plaintiffs.
Frustrated by the plaintiffs’ refusal to answer, one of the defendants threatened to throw a flash strip under the door of the cashier’s cage. At that point, the silence was broken, and one of the plaintiffs told the defendants that there were people inside the cage.
The defendants then repeatedly slammed their bodies against the cage door, demanded the plaintiffs open it and threatened to deploy oleoresin-capsicum spray if they didn’t comply, according to the opinion.
Next, one of the defendants used a tool to pry open the steel shutters of the cashier’s window. One of the non-plaintiffs sheltering in the cashier cage demanded that defendants stop destroying government property and shouted “out of role”—a phrase that any BOP employee can use during a mock exercise to immediately end the exercise for safety reasons, and a phrase that no defendant ever used throughout the entire incident.
Despite the plaintiffs’ explanation for why they wouldn’t open the door, one of the defendants fired Simunition rounds at the cashier’s cage, according to the opinion. Defendants also continued to threaten to use OC spray. Defendants eventually asked over the radio for authorization to use OC spray, which was never received.
One of the defendants then sprayed two busts of OC spray into the cage, after which the plaintiffs shouted “out of role” continuously. They then said they were coming out and started to open the door.
According to the opinion, the defendants then pushed their way into the cashier’s cage, told the plaintiffs to get on the ground, and then “repeatedly started punching and hitting the individuals inside the cashier’s cage,” even though the plaintiffs and the other individuals in the cage continued to shout “out of role” and at least two of the defendants heard as much.
Following the incident, the plaintiffs filed a complaint in federal district court asserting state-law claims for intentional infliction of emotional distress and civil conspiracy.
The government then intervened with its Westfall certification, substituting itself for the defendants on the basis that they were acting within the scope of their employment. The plaintiffs moved to set aside the Westfall certification.
The district court ultimately concluded that the defendants were acting outside the scope of their employment, struck the government’s Westfall certification and ordered the plaintiffs’ state-law claims to proceed against the individual defendants.
The government didn’t appeal the ruling, but the defendants did.
The 10th Circuit Court of Appeals found that the defendants’ actions were not assigned, incidental or customary work; nor were they motivated by a subjective intent to further the BOP’s business. It concluded their conduct fell outside the scope of their employment.
The 10th Circuit affirmed.
McNellis v. Douglas County School District
Corey McNellis is a former athletic director and assistant principal of a high school within Douglas County School District. In a staff email chain, he expressed reservations about an extracurricular activity at the school—an upcoming performance of “The Laramie Project”—and offered to add a “Christian perspective” to the theatrical production.
Shortly thereafter, he was placed on administrative leave, investigated and ultimately terminated.
McNellis sued the district in federal court in Colorado. He brought a First Amendment retaliation claim and religious discrimination claims under Title VII and Colorado Law.
The district court dismissed the case. McNellis appealed.
The 10th Circuit Court of Appeals found that some of McNellis’s allegations were sufficient to give rise to an inference of discrimination. His allegations that the district repeatedly invoked his “religious comments” before investigating and terminating him provided a plausible link between his termination and a discriminatory motive, according to the opinion.
The 10th Circuit concluded that under these circumstances and at this procedural stage, it is sufficient to “nudge [his] claims across the line from conceivable to plausible.”
The 10th Circuit reversed the dismissal of McNellis’s discrimination claims under Title VII and the Colorado Anti-Discrimination Act and remanded. It otherwise affirmed.