Background
In December two thousand twenty-one, United States Customs and Border Protection Agent Robert Duran struck Tami Barrier with his vehicle while exiting a CBP station. Duran was a full-time union officer who had agreed to receive donated pandemic supplies at a union hall. The district court granted summary judgment for the Government, concluding Duran was not acting within the course and scope of his employment. Barrier appealed, arguing the act was a special mission or part of his union duties.
The court’s reasoning
The Fifth Circuit reviewed the grant of summary judgment de novo. Under Texas law, an act is within the scope of employment if it is in furtherance of the employer’s business. The court analyzed whether Duran’s drive to retrieve supplies constituted a special mission exception to the coming-and-going rule. The court found material facts disputed regarding whether Duran was on duty and whether he was heading home or to the union hall. The court noted that receiving supplies for distribution to other agents could benefit the employer. The court also addressed whether union duties fall outside the scope of employment, concluding that union work constitutes a significant portion of Duran’s employment and could be within the scope if it furthered the employer’s mission. The court distinguished cases involving purely personal errands, noting that Duran was retrieving supplies for distribution, not personal consumption.
Because we conclude that a reasonable jury could disagree, we REVERSE and REMAND.
What it means going forward
The decision allows the plaintiff’s claim to proceed to trial, requiring a jury to determine if the agent was acting within the scope of his employment when he struck the plaintiff.