Peña v. Greffet (110 F. Supp. 3d 1103, 2015)

United States District Court for the District of New Mexico 2015-06-17

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the CCA Defendants’ Motion for Judgment on the Pleadings, filed September 20, 2014 (Doc. 63)(“Motion”). The Court held a hearing on September 5, 2014. The primary issue is whether Defendant Corrections Corporation of America (“CCA”) can be held vicariously liable for a sexual battery that one of its correctional officers, Defendant Dale Greffet, committed against one of its inmates, Plaintiff Crystal Peña. Under the aided-in-agency theory that the Supreme Court of New Mexico articulated in Ocana v. American Furniture Co., 2004-NMSC-018, 135 N.M. 539, 91 P.3d 58 (Maes, C.J.)(unanimous)(“Oca/jm”), CCA is vicariously liable for Greffet’s intentional torts if Greffet’s agency relationship with CCA provided him with extraordinary power over Peña and that power aided him in committing those torts. Whether Gref-fet’s CCA-imparted power over Peña aided him in sexually battering her is a question of fact, and, as Peña’s allegations make it plausible that it did, this question is one for the jury.

FACTUAL BACKGROUND

The Court takes its facts from the Amended Complaint for Civil Rights Violations and Common Law Torts, filed February 28, 2013 (Doc. 30)(“Complaint”), as it must in ruling on a rule 12(c) motion, see Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. 303, 304 (D.N.M.2000) (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998)). In July, 2009, Peña was a post-conviction prisoner at the New Mexico Women’s Correctional Facility (“NMWCF”). See Complaint ¶ 3, at 1-2. At all times material to Peña’s allegations, CCA operated and maintained the NMWCF pursuant to a contract with the State of New Mexico, and was bound to comply with certain New Mexico Corrections Department (“NMCD”) policies. Complaint ¶ 4, at 2. CCA employed Defendant Arlene Hickson as the NMWCF’s warden, and, as such, she was the facility’s head supervisor. See Complaint ¶ 5, at 2. During the time period throughout which the underlying conduct took place, CCA employed Greffet and Defendant Carlos Vallejos as corrections officers at the NMWCF. See Complaint ¶ 6, at 2.

The boyfriend of Peña’s mother raped Peña when she was a young child on two separate occasions. See Complaint ¶ 7, at 2. Before the events in the Complaint, Peña had been diagnosed with debilitating mental illnesses. See Complaint ¶ 8, at 2. In the spring of 2009, while Peña was isolated in the NMWCF’s segregation unit, Greffet befriended her and initiated, cultivated, and encouraged an intimate relationship with her contrary to CCA’s and NMCD’s policies and procedures. See Complaint ¶ 9, at 2. The claims alleged in the Complaint arise from five distinct incidences: (i) Greffet’s alleged sexual abuse at the NMWCF in July/August, 2009; (ii) Greffet’s alleged sexual abuse in Alamogordo, New Mexico, around Labor Day weekend, 2009; (iii) Greffet’s alleged sexual abuse in Albuquerque, New Mexico, around August, 2010; (iv) Vallejos’ alleged assault and battery in a hallway at the NMWCF in June, 2011; and (v) Peña’s being placed and kept in segregation following her sexual abuse report in 2011.

1. The July/AugUst, 2009, Alleged Sexual Abuse at the NMWCF.

Beginning in July of 2009, Greffet began to make advances and sexual comments to Peña about her physical appearance, which', for a period of time, Peña resisted. See Complaint ¶¶ 1011, at 2. In July and August of 2009, Greffet began to sexually fondle Peña. See Complaint ¶ 12, at 3. During the same time frame, Greffet made numerous false statements to Peña, including expressing his intent to enter into a committed relationship with her and his desire that they raise children together after her release from custody. See Complaint ¶ 13, at 3. Peña, relying on these statements, came to believe that Greffet was committed to a monogamous relationship with her in which the two of them would raise children. See Complaint ¶ 14, at 3. Peña was particularly susceptible to these advances, because of her history of sexual victimization, her diagnosed mental illnesses, and her aspiration to live a life of love and normalcy. See Complaint ¶ 15, at 3. At some point during late July or early August of 2009, Greffet called Peña into the commanding officer’s office in front of the master control area of the NMWCF, and, sitting at the desk, revealed his erect penis to Peña, and told her to look and see the effect that she had on him. See Complaint ¶¶ 16-17, at 3. With Peña under the desk, Greffet orally sodomized her. See Complaint ¶ 18, at 3.

2. The Labor Day Weekend, 2009, Alleged Sexual Abuse in Alamogordo.

On or about late August of 2009, Peña paroled to Ruidoso, New Mexico, from the NMWCF. See Complaint ¶ 19, at 4. After Peña paroled, Greffet obtained Peña’s telephone number from Peña’s aunt, who was incarcerated at the NMWCF. See Complaint ¶ 20, at 3. Greffet contacted teña and pressured her to meet him. See Complaint ¶ 20, at 3. On Labor Day weekend of 2009, just before Peña entered into an inpatient treatment program in Alamogordo as a condition of her probation, Greffet rented a motel room for the two of them. See Complaint ¶ 21, at 4. During their stay in the motel room, Greffet raped Peña on four occasions. See Complaint ¶ 22, at 4. In the motel room, Peña resisted Greffet’s efforts to orally and anally sodomize her, but relented when Greffet persisted. See Complaint ¶ 23, at 4.

On or about October of 2009, Peña’s parole was revoked, and she returned to the NMWCF, where Greffet continued to work. See Complaint ¶ 24, at 4. After returning from parole, Greffet continued to falsely state his commitment to Peña and his intent to raise children with her, to 'make sexual advances toward her, and to sexually fondle her. See Complaint ¶ 25, at 4. On or around April of 2010, Greffet left his position at the NMWCF. Before he left, however, Greffet again expressed his plans to live with Peña and to raise children with her. See Complaint ¶ 26, at 4.

3. The August, 2010, Alleged Sexual Abuse in Albuquerque.

On or about August of 2010, the NMWCF again released Peña on probation. A condition of. her probation was that she enroll in an in-patient treatment program for her mental health. See Complaint ¶ 27, at 4. Peña reported to and tried to qualify for the Maya’s Place treatment program in Albuquerque. See Complaint ¶ 28, at 4. During this time frame, Greffet raped Peña on three occasions, again notwithstanding her resistance to anal sodomy. See Complaint ¶29, at 4.-Greffet conceived a child with Peña during this time frame. See Complaint ¶ 29, at 4. Eventually, Maya’s Place rejected Peña because, as she suffered from mental illness rather than drug dependence, she did not fit the program’s criteria for admittance. See Complaint ¶ 30, at 5.

Because she was unable to enter a treatment program and thereby satisfy her condition of probation, Peña turned herself into law enforcement in September of 2010. See Complaint ¶ 31, at 5. As she was surrendering to authorities, Peña fainted, was taken to the emergency room, and learned for the first time that she was pregnant. See Complaint ¶ 33, at 5. Gref-fet promised to bond her out from Doña Ana County Detention Center in Las-Cruces, New Mexico, where she would be held, but never did so. See Complaint ¶¶ 32,' 36, at 5. The next day, from jail, Peña told Greffet that she was pregnant. See Complaint ¶ 34, at 5. Greffet thought that aborting the baby was the best option, and, accordingly, Peña and the Doña Ana County Detention Center made arrangements for the abortion. See Complaint ¶¶ 34-35, at 5. Peña could not go through with the abortion, however, and returned to jail with the baby still in útero. See Complaint ¶¶ 34-35, at 5. Eventually, Peña realized that Greffet was not going to bond her and that she was going to have to deliver the child in jail. See Complaint ¶ 36, at 5. She discussed with Greffet how to care for the child during the child’s first months of life, when she would still be incarcerated. See Complaint ¶ 36, at 5. Greffet said he would not care for the baby and that adoption was the best option. See Complaint ¶ 37, at 5. Before giving birth, and in large part because of her inability to find someone to care for the baby while she remained in prison, Peña felt compelled to relinquish her parental rights. See Complaint ¶ 38, at 6. She gave birth to her son on May 2, 2011, while incarcerated at the NMWCF. See Complaint ¶ 39, at 6.

4. Vallejos’ Alleged Assault and Battery.

On or around early June of 2011, Peña was suffering from postpartum depression, in addition to her other mental illnesses, and was grieving her estrangement from her son in the NMWCF’s hallway. See Complaint ¶ 40, at 6. Vallejos verbally engaged Peña in the hallway, asking her what was wrong. See Complaint ¶ 41, at 6. Peña was despondent and traumatized, and did not have the will or the desire to explain to Vallejos her predicament or her feelings; she continued to walk toward her unit, where she intended to contact mental health for immediate mental health treatment. See Complaint ¶ 42, at 6. When Peña failed to respond to Vallejos’ questioning, he pursued her down the hallway, grabbed her from behind and slammed her against the wall of the hallway, causing bruising to her arms and triggering severe symptoms of chronic post-traumatic stress disorder. See Complaint ¶ 43-44, at 6. Because of Vallejos’ battery of Peña and his mistreatment of other inmates at the facility, CCA removed him from his position at the NMWCF. See Complaint ¶ 42, at 6.

5. The Alleged Retaliation Against Peña.

CCA and Hickson placed Peña in isolated/segregated confinement in response to the incident with Vallejos. See Complaint ¶ 47, at 7. While Peña was in segregation at the NMWCF, CCA and Hickson learned that she was accusing Greffet of raping her; they pressured her to provide them with a statement about the incident. See Complaint ¶ 48, at 7. When Peña refused to provide them with a statement about Greffet, and when it became clear that she was also accusing Vallejos of assault and battery, CCA and Hickson kept her in varying levels of segregated confinement for a period of approximately eight months, in violation of CCA’s and NMCD’s policies. See Complaint ¶ 49, at 7. Her placement in segregated confinement severely aggravated her fragile mental condition, prevented her from contacting the outside world, including her mother and her son’s adoptive parents, and caused her to lose good time and to remain incarcerated for a longer period of time, resulting in severe mental and emotional distress. See Complaint ¶ 50, at 7.

PROCEDURAL BACKGROUND

Peña brings this action against Greffet and Vallejos in their individual capacities, against Hickson in her individual and official capacity, and against CCA pursuant to 42 U.S.C. § 1983, for their alleged violation of her civil rights arising under the Fourth, Eighth, and Fourteenth Amendments to Constitution of the United States of America. See Complaint at 1. In Count I, Peña alleges that Greffet sexually fondled her while she was incarcerated in the NMWCF, and orally sodomized her in the NMWCF, in violation of her Eighth Amendment right to be free from cruel and unusual punishment, “including the right to be secure in her bodily integrity and free from sexual advances, sexual fondling, sexual intercourse, anal sodomy, and oral sodomy by prison personnel.” Complaint ¶ 52, at 7-8. Peña alleges that Gref-fet’s sexual fondling, sodomy, and rapes proximately caused her damages and injuries, and she requests the Court grant “compensatory and punitive damages against Defendant Greffet, together with all costs and attorney’s fees.” Complaint ¶ 57, at 8.

In Count II, Peña alleges that Vallejos’ conduct in “grabbing Plaintiff and slamming her against a wall” violated her Eighth Amendment right to be free from cruel and unusual punishment, and to be free from “unreasonable, unnecessary, and excessive force.... ” Complaint ¶ 60, at 9. Peña asserts that Vallejos’ use of “unreasonable, unnecessary, and excessive force against Plaintiff was intentional, malicious, sadistic, willful, wanton, obdurate, and in gross and reckless disregard for Plaintiffs constitutional rights.” Complaint ¶ 61, at 9. She requests the same relief in Count II that she does in Count I. See Complaint ¶ 64, at 9.

In Count III, Peña alleges that CCA and Hickson violated her Eighth and Fourteenth Amendment rights to be free from exposure to “unreasonable risks of harm or from exercising deliberate indifference toward her safety, security, and constitutional rights,” because CCA and Hickson “engaged in a custom of suppressing, denying or disregarding incidents of prison rape.... ” Complaint ¶¶ 66-67, at 10. The incidents of rape are alleged to include: (i) placing inmates who reported sexual or other staff misconduct in segregation, or otherwise retaliating against them; (ii) violating internal and NMCD policies by failing to report allegations of prison rape to outside law enforcement; (iii) failing to conduct adequate internal investigations of rape allegations; and (iv) offering financial incentives for non-reporting. See Complaint ¶ 67, at 10. She requests the same relief in Count III that she does in Counts I and II. See Complaint ¶ 69, at 10.

In Count IV, Peña alleges that CCA and Hickson violated her First Amendment right to be free from retaliation for reporting sexual or physical assaults by prison officers, her Eighth Amendment right to be free from cruel and unusual punishment, her Fourteenth Amendment right to procedural due process, and CCA and NMCD policies, when they placed and kept Peña in “segregated confinement following her reporting of Defendant Gref-fet’s rapes and Carlos Vallejos’ assault.” Complaint ¶¶ 71-72, at 11. She requests the same relief in Count IV that she does in the other Counts. See Complaint ¶ 75, at 11.

In Count V, Peña alleges that Greffet is liable for the intentional torts of battery and rape for his rapes of Peña in Alamogordo and in Albuquerque when she “lacked the capacity to consent thereto[, and i]n any case, ... did not consent to the sex.” Complaint ¶¶ 77,. at 12. Peña alleges that CCA is legally liable under New Mexico law for Greffet’s tortious conduct under the doctrine of respondeat superior, as Peña “was directly informed and/or had reason to believe that Defendant Greffet was an agent and employee of’ CCA. Complaint ¶¶ 80-81, at 12. She seeks the same relief in Count V as in the other Counts. See Complaint ¶ 81, at 12.

In Count VI, Peña alleges that Vallejos, in “violently grabbing [her] and slamming her against the wall,” committed an intentional offensive touching to Peña’s person, and Vallejos is thus liable for the intentional tort of battery. Complaint ¶¶ 83, at 13. Peña alleges that CCA is also liable for this intentional tort of Vallejos under the respondeat superior theory, as he was acting as CCA’s agent and employee at all material times. See Complaint ¶¶ 87-88, at 13. She seeks the same relief in Count VI as in the other claims. See Complaint ¶ 88, at 13.

The Court has already dismissed several other claims that Peña initially alleged. In its Memorandum Opinion and Order, filed January 28, 2013 (Doc. 22)(“MOO”), the Court dismissed § 1983 claims arising from sexual encounters between her and Greffet that occurred outside of the NMWCF. See MOO at 2. The Court also dismissed vicarious liability claims against CCA for Greffet’s conduct outside of the NMWCF. See MOO at 2-3.

On July 19, 2013, attorneys for both sides filed a motion asking the Court to stay proceedings to allow the parties to litigate “whether, in the event that Plaintiff prevails on her intentional tort claim against former CCA-employee Greffet, Defendant CCA could be held vicariously liable, or otherwise financially responsible for a judgment against him.” See Unopposed Joint Motion to Stay Proceedings at 1, filed July 19, 2013 (Doc. 56). The Court granted that motion. See Order, filed July 25, 2013 (Doc. 57). Within the month, Peña filed a Motion for Partial Summary Judgment on the Issue of Vicarious Liability, filed August 16, 2013 (Doc. 60)(“MSJ”). In the MSJ, Peña asserts that CCA “bestowed [Greffet] with the authority to control [Peña’s] movement[,] to meet with inmates in a private and discrete offiee[,] and to make disciplinary determinations.” MSJ at 6. These powers “enabled Defendant Greffet to order Ms. Peña to the secluded Commander’s office, thereby aiding him in accomplishing” the alleged sexual misconduct, and Greffet’s “authority as a Lieutenant to impose or dispose of disciplinary actions was a contributing factor to M. Peña’s submission” to the alleged sexual misconduct. MSJ at 6. Peña argues that this allegation establishes CCA’s vicarious liability for Greffet’s alleged tor-tious actions in the NMWCF under the aided-in-agency theory of liability, which the Supreme Court of New Mexico adopted in Ocana. See MSJ at 4. Peña withdrew the MSJ two months after she filed it, at the reply stage of the briefing. See Reply to Defendants’ Response to Plaintiff’s Motion for Partial Summary Judgment, filed October 16, 2013 (Doc. 70)(“Plaintiff hereby withdraws [the MSJ].”).

On September 20, 2013, CCA, Hickson, and Vallejos (collectively, the “CCA Defen-' dants”) filed the Motion now before the Court, asking the court to enter judgment against Peña on the vicarious-liability issue. See Motion at 3-4, 5-6. They contend that Peña falls short of the facial plausibility standard expressed in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), by failing to expressly allege aided-in-agency liability or to allege facts that would support such a claim. See Defendants MFJ at 3-4, 5-6. The CCA Defendants argue that, because Peña “merely alleges that Greffet ... ‘called’ her ‘into the Commander’s office[]’ and ‘orally sodomized her,’ ” she fails to establish Greffet either “purported to act or speak on behalf of [CCA,] and there was reliance upon apparent authority, or [that Greffet] was aided in accomplishing the tort by the existence of the agency.” Motion at 6.

The CCA Defendants contend that Peña’s pleaded facts demonstrate that Greffet was not aided by his role as an agent of CCA in committing the alleged sexual misconduct at the NMWCF. See Motion at 6. The CCA Defendants note that Peña alleges that Greffet “continued to sexually assault her even after she was released from NMWC[F] and after he was no longer employed by CCA,” which they say indicates that “the conduct did not occur as a result of the agency relationship.” Motion at 7. For support, the CCA Defendants cite EEOC v. Genesco, Inc., No. CIV 09-0652 WJ/RHS, 2011 WL 2490634 (D.N.M. Apr. 12, 2011) (Johnson, J.), which found no aided-in-agency liability where “harassment occurred before, during, and after the period in which [the defendant] was [the plaintiffs] supervisor.” Motion at 7 (quoting 2011 WL 2490634, at *3) (internal quotation marks omitted). Moreover, the CCA Defendants contend that the Court “already rejected an aided-in-agency theory of liability based on” an alleged sexual assault in Alamogordo after the NMWCF released Peña, “because ‘Peña’s factual allegations plead that Gref-fet’s sexual assault was contrary to CCA’s and NMCD’s policies.’ ” Motion at 67 (citation omitted). In light of Peña’s pleaded facts, the CCA Defendants contend that “it is not plausible to suggest that Greffet was acting pursuant to his agency authority.” Motion at 6-7. Additionally, the CCA Defendants warn that “to construe Peña’s Amended Complaint as alleging an aided-in-agency theory would turn the theory ‘into strict liability for employers whenever a supervisor commits a tort upon an employee while the employee is on duty.’ ” Motion at 7 (citation omitted). Last, the CCA Defendants note that, while the Restatement (Second) of Agency — which the Supreme Court of New Mexico consulted in Ocana — recognizes the aided-in-agency theory of vicarious liability, the Restatement (Third) of Agency, published since Ocana, abandons the doctrine altogether.

A little less than a month after the CCA Defendants filed the Motion, Peña filed her Response in Opposition to Defendants’ Motion for Judgment on the Pleadings, filed October 16, 2013 (Doc. 69)(“Re-sponse”). Peña contends that the Court “already determined that the original complaint plausibly alleged an aided-in-agency theory” based on the alleged sexual misconduct in the NMWCF, Response at 3, when, in its MOO, the Court wrote:

While Peña was an inmate at NMWCF and Greffet was a corrections officer there, as Judge Boasberg concluded in Doe v. Sipper, Greffet could have plausibly used his authority as an officer as an instrumentality to force Peña to come to the corrections office in the guise of furthering CCA’s or NMWCF’s business, and allegedly sexual assaulting her there.

Response at 3 (quoting MOO at 110). Additionally, Peña argues that she plausibly alleged a claim for aided-in-agency liability for the alleged NMWCF sexual misconduct. She contends that, because Greffet “cultivated a relationship” with Peña while she was an inmate and “called Plaintiff into the Commander’s office [and] revealed his erect penis and proceeded to orally sodomize her” at a time when Peña “perceived Defendant Greffet to be an agent and employee of CCA, ... it is plainly plausible” that Greffet was “aided” in committing the alleged sexual misconduct “by virtue of his access to Plaintiff ..., his authority over Plaintiff ..., and his ability ... to summon Plaintiff to a ‘Commander’s Office’ in order to perpetrate sexual abuse.” Response at 4. In other words, Peña argues that “it is plausible that the ‘instrumentality’ of Defendant Greffet’s authority as a CCA corrections officer aided and enabled him to access Plaintiff, and to ‘summon’ her to the Commander’s Office.” Response at 4.

Peña also argues that the CCA Defendants are misguided when they characterize the aided-in-agency theory as being unavailable when the agent’s conduct violates the principal’s standard policies and procedures. She contends: “This argument conflates the concept of being aided by an agency relationship with the principal with the concept of being compliant with the policies of the principal” and that, “[c]ontrary to Defendants’ strained position, one can accomplish the former while violating the latter.” Response at 4-5 (emphases in original). Peña notes “[t]here is no case law supporting the.notion that the violation of a principal’s policies or procedures precludes application of the aided-in-agency doctrine.” Response at 5. Furthermore, Peña contends that the CCA Defendants improperly rely on the MOO to support this claim; she argues that, rather than holding that violating policies and regulation precludes the aided-in-agency theory, the Court was rejecting Peña’s “implied authority” theory of vicarious liability. Response at 5. Finally, Peña refutes the CCA Defendants’ argument that, if two of the three alleged incidents of sexual misconduct occurred outside of the NMWCF, then Greffet could not have been aided-in-agency by CCA. She calls that argument “facially absurd” and contends that “[t]he fact that Plaintiff alleges that Defendant Greffet abused her on multiple occasions cannot, as a matter of logic, disprove that his agency aided him in abusing her the first time.” Response at 5.

The CCA Defendants replied roughly a month later. See CCA Defendants’ Reply in Support of Motion for Judgment on the Pleadings, filed November 15, 2013 (Doc. 71)(“Reply”). The Reply notes that, because Peña withdrew her MSJ, the Court should resolve the vicarious-liability question by way of the Motion. See Reply at 1. They devote the first portion of their brief to arguing that the Court did not earlier rule on whether the Complaint sufficiently pleaded the aided-in-agency theory. See Reply at 2-5. As the Court will analyze the aided-in-agency theory anew here, the Court will not summarize that argument. Next, they renew their argument that the Complaint’s allegations do not establish an aided-in-agency theory, going into the details of how Peña pled her Complaint. See Reply at 5-6. They also attack the aided-in-agency theory generally, arguing that it “would impose per se vicarious liability on an employer for an employee’s tort, particularly in a custodial setting, regardless of whether it occurred in the course and scope of the employee’s employment.” Reply at 6.

LAW REGARDING JUDGMENT ON THE PLEADINGS UNDER RULE 12(e)

“After the pleadings are closed— but early enough not to delay trial — a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). A rule 12(c) motion is designed to provide a means of disposing of cases when the material facts are not in dispute between the parties. See Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 54 (3d Cir.1994) (“Under Rule 12(c), we will not grant judgment on the pleadings unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” (citation omitted)(internal quotation marks omitted)). A “[jjudgment on the pleadings should not be granted ‘unless the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.’ ” Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1244 (10th Cir.2006) (citing United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000)). Claims dismissed pursuant to a motion under rule 12(c) are dismissed with prejudice. See In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir.2010).

“Any party may move for judgment on the pleadings if no material facts are in dispute and the dispute can be resolved on both the pleadings and any facts of which the Court can take judicial notice.” Ramirez v. WaL-Mart Stores, Inc., 192 F.R.D. at 304 (citing Fed.R.Civ.P. 12(c)). A motion pursuant to rule 12(c) is generally treated in the same manner as a motion to dismiss under rule 12(b)(6). See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304 (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998)). A motion for a judgment on the pleadings will be granted if the pleadings demonstrate that the moving party is entitled to judgment as a matter of law. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304.

A court considering a motion for judgment on the pleadings should “accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings in favor of the same.” Park Univ. Enters. Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d at 1244. The court must view the facts presented in the pleadings and draw the inferences therefrom in the light most favorable to the nonmoving party. See Ramirez v. Wal-Mart Stores, Inc., 192 F.R.D. at 304. All of the non-moving parties’ allegations are deemed to be true, and all of the movants’ contrary assertions are taken to be false. See Nat’l Metro. Bank v. United States, 323 U.S. 454, 456-57, 65 S.Ct. 354, 89 L.Ed. 383 (1945); Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th Cir.2000); Freeman v. Dep’t of Corr., 949 F.2d 360, 361 (10th Cir.1991).

The same standards that govern a motion to dismiss under rule 12(b)(6) also govern a motion for judgment on the pleadings under rule 12(c). See Atl. Richfield Co. v. Farm Credit Bank, 226 F.3d 1138, 1160 (10th Cir.2000). Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the nonmoving party, and draw all reasonable inferences in the plaintiffs favor. See Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991).

A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs obligation to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). “[T]he Supreme Court recently ... prescribed a new inquiry for us to use in reviewing a dismissal: whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’ ” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 558, 562, 127 S.Ct. 1955). “The [Supreme] Court explained that a plaintiff must ‘nudge his claims across the line from conceivable to plausible’ in order to survive a motion to dismiss.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d at 1177 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (alterations omitted). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d at 1177. The Tenth Circuit has stated:

“[PJlausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them. “Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Bell Atl. Corp. v. Twombly, 127 S.Ct. at 1965 n. 3. See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir.2007) (“[A]t some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.”). The Twombly Court was particularly critical of complaints that “mentioned no specific time, place, or person involved in the alleged conspiracies.” 127 S.Ct. at 1971 n. 10. Given such a complaint, “a defendant seeking to respond to plaintiffs’ conclusory allegations ... would have little idea where to begin.” Id.

Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.2008) (footnote omitted) (citations omitted).

In determining the sufficiency of a complaint, all well-pleaded factual allegations are to be taken as true. See Timpanogos Tribe v. Conway, 286 F.3d 1195, 1204 (10th Cir.2002). “Nevertheless, conclusory allegations without supporting factual aver-ments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). “Moreover, in analyzing the sufficiency of the plaintiffs complaint, the court need accept as true only the plaintiffs well-pleaded factual contentions, not his conclu-sory allegations.” Hall v. Bellmon, 935 F.2d at 1110. Only well-pleaded facts, as distinguished from conclusory allegations, are admitted when considering a motion to dismiss for failure to state a claim upon which relief can be granted. See Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001).

A court must convert a motion to dismiss into a motion for summary judgment if “matters outside the pleading are presented to and not excluded by the court,” and “all parties ... [are] given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(d). Facts subject tó judicial notice may be considered without converting a motion to dismiss into a motion for summary judgment. See Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279, n. 1 (10th Cir.2004) (citing 27A Federal Procedure, Lawyers’ Ed. § 62:520 (2003)). Furthermore, when considering a motion to dismiss, “the court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir.2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir.2001). A court may consider documents to which the complaint refers if the documents are central to the plaintiffs claim and the parties do not dispute the documents’ authenticity. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-42 (10th Cir.2002). If, however, a document is not incorporated by reference or attached to the complaint, but the complaint refers to the document and the document is central to the plaintiffs claim, the defendant may submit an “indisputably authentic copy to the court to be considered on a motion to dismiss.” GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997). See 5A Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 1327 (3d ed. 2004)(“[W]hen the plaintiff fails to introduce a pertinent document as part of her pleading ... the defendant may introduce the document as an exhibit to a motion attacking the sufficiency of the pleading.”).

LAW REGARDING VICARIOUS LIABILITY

“Under basic respondeat superi- or principles, an employer is liable for an employee’s torts committed within the scope of his or her employment.” Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1271 (D.N.M.2010) (Browning, J.)(quoting Ocana, 2004-NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58). “[A]n employer is not generally liable for an employee’s intentional torts because an employee who intentionally injures another individually is generally considered to be acting outside the scope of his or her employment.” Ocana, 2004-NMSC-018, ¶ 29, 135 N.M. 539, 91 P.3d 58 (citing Martin-Martinez v. 6001, Inc., 1998-NMCA-179, ¶ 13, 126 N.M. 319, 968 P.2d 1182 (“In most instances, the intentional conduct of an employee injuring another employee is not the intentional conduct of the employer.”)). “Generally, whether an employee is acting in the course and scope of employment is a question of fact.” Rivera v. N.M. Highway & Transp. Dept., 115 N.M. 562, 564, 855 P.2d 136, 138 (Ct.App.1993) (citing Narney v. Daniels, 115 N.M. 41, 48, 846 P.2d 347, 354 (Ct.App.1992)). “However, when no reasonable trier of fact could conclude that an employee is acting in the course and scope of employment,” the conduct was not in the scope of employment as a matter of law. Rivera v. N.M. Highway and Transp. Dept., 115 N.M. at 564, 855 P.2d at 138 (citing Narney v. Daniels, 115 N.M. at 49-50, 846 P.2d at 355-56). New Mexico uses a four-part test to determine whether an employee’s acts were performed within the scope of employment:

An employee’s action, although unauthorized, is considered to be in the scope of employment if the action (1) is the kind the employee is employed to perform; (2) occurs during a period reasonably connected to the authorized employment period; (3) occurs in an area reasonably close to the authorized area; and (4) is actuated, at least in part, by a purpose to serve the employer.

Lessard v. Coronado Paint & Decorating Ctr., Inc., 2007-NMCA-122, ¶ 12, 142 N.M. 583, 168 P.3d 155 (citing Narney v. Daniels, 115 N.M. at 49, 846 P.2d at 355; Restatement (Third) of Agency § 7.07(2) (2006)). The New Mexico Civil Uniform Jury Instruction on the scope of employment provides:

An act of an employee is within the scope of his or her employment if:

1. It was something fairly and naturally incidental to the employer’s business assigned to the employee, and

2. It was done while the employee was engaged in the employer’s business with the view of furthering the employer’s interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

Civ. U.J.I. 13-407 N.M.R.A. See Childers v. S. Pac. Co., 20 N.M. 366, 372-73, 149 P. 307, 308 (1915) (same). The Supreme Court of New Mexico has also held that employers may sometimes be held liable fop torts an employee commits outside his or her scope of duty — including intentional torts — under an aided-in-agency theory of vicarious liability, which requires that the agent “was aided in accomplishing the tort by the existence of the agency relation.” Ocana, 2004-NMSC-018, ¶ 30, 135 N.M. 539, 91 P.3d 58 (quoting Restatement (Second) of Agency § 219(2)(d) cl. 2)(internal quotation marks omitted).

ANALYSIS

The Court will deny the Motion and allow Peña’s aided-in-agency theory of vicarious liability to proceed to trial. At trial, the Court will design a special verdict form, and, if the jury finds that Greffet committed battery against Peña, that Gref-fet’s agency relationship with CCA imparted him with extraordinary power over her, and that this extraordinary power aided him in committing battery, then CCA will be on the hook for all damages attributable to that tort.

Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (“Erie”), when dealing with state-law torts like Peña’s battery claim, the Court must apply vicarious liability principles as the Supreme Court of New Mexico would define them. Resolving the Motion largely boils down to formulating an Erie prediction about whether and how the Supreme Court of New Mexico would cabin the seemingly limitless vicarious liability that the aided-in-agency theory, read literally as the Restatement and Ocana announce it, would create. To formulate its Erie prediction, the Court will first outline the aided-in-agency theory’s relatively sparse history, from its apparent birth in the Restatement (Second) of Agency in 1958, to the Supreme Court of the United States’ incorporation of it into Title VII, through Ocana and other state-court precedent applying the theory, and finally to its demise in the Restatement (Third) of Agency. The Court will then predict how the Supreme Court of New Mexico would define the aided-in-agency theory’s contours today, guided primarily, of course, by its words in Ocana, but also by policy factors that the Court concludes would influence the Supreme Court to narrow the doctrine from its broad articulation in Oca-na. Last, the Court will apply the aided-in-agency theory to this case’s facts, concluding that Peña has plausibly alleged the theory, and that the vicarious liability issue must thus go to the jury.

I. THE HISTORY OF AIDED-IN-AGENCY.

To shed light on the aided-in-agency theory’s proper construction, the Court will first summarize its history. The Restatement (Second) of Agency created the theory, which was then adopted — in various ways — by a number of courts, including the Supreme Courts of the United States and New Mexico. The Restatement (Third) of Agency later disclaimed the theory entirely — albeit quietly — leaving its status as a creature of New Mexico common law somewhat uncertain.

A. THE RESTATEMENT (SECOND) OF AGENCY CREATES THE THEORY.

Although the Restatements, as their name suggests, are not really supposed to create new legal theories, the aided-in-agency theory has its apparent genesis in the Restatement (Second) of Agency, in a section titled “When Master is Liable for Torts of His Servants.” Restatement (Second) of Agency § 219. See Alan J. Oxford, II, When Agents Attack: Judicial Misinterpretation of Vicarious Liability Under “Aided in Accomplishing the Tort by the Existence of the Agency Relation” and Restatement Srd’s Failure to Properly “Restate” the Ill-Fated Section 219(2)(d) Provision, 37 Okla. City. U.L.Rev. 157, 170 (2012)(“Restatement 2nd produced the Aided in Accomplishing language where such language did not previously exist in the common law.” (footnotes omitted)). Section 219 outlines vicarious tort liability in the employer-employee context, generally; the concept of aided-in-agency is found in § 219(2)(d)’s second independent clause:

(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.

(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct ' or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delega-ble duty of the master, or

(d)the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.

Restatement (Second) of Agency § 219 (emphasis added). Section 219’s commentary contains a single paragraph devoted to § 219(2)(d); the first two sentences refer to apparent authority — i.e., § 219(2)(d)’s first independent clause — and the remainder of the commentary refers to the aided-in-agency theory:

Clause (d) includes primarily situations in which the principal’s liability is based upon conduct which is within the apparent authority of a servant, as where one purports to speak for his employer in defaming another or interfering with another’s business. Apparent authority may also be the basis of an action of deceit, and even physical harm. In other situations [ — the following refers to the aided-in-agency theory — ] the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons. Again, the manager of a store operated by him for an undisclosed principal is enabled to cheat the customers because of his position. The enumeration of such situations is not exhaustive, and is intended only to indicate the area within which a master may be subjected to liability for acts of his servants not in scope of employment.

Restatement (Second) of Agency § 219 cmt. on subsection (2) (citations omitted). It is interesting that the commentary calls apparent authority the “primary” source of liability in § 219(2)(d), as the aided-in-agency theory, read to the full extent of its literal terms, would seem to create the possibility of vicarious liability in a wider array of situations. For one thing, it would seem that most torts committed with apparent authority would also be committed with the aid of the agency relationship, unless the apparent authority was incidental to the commission of tort.

As an initial matter, the Court will point out the obvious defect in the aided-in-agency theory: it comes close to creating strict vicarious liability for employers, and, despite purporting to be an exception, it nearly swallows the general rule that re-spondeat superior does not attach to intentional torts. If § 219(2)(d) cl. 2 were read literally, a creative plaintiffs lawyer could make a colorable argument for vicarious liability in almost every intentional tort case in which the tortfeasor happens to be gainfully employed. If a barista poisoned a patron’s coffee, the patron could sue the coffee shop under the theory that the bar-ista was only able to commit the tort because he or she worked for the coffee shop. If a utility worker used his uniform and credentials to get invited into a woman’s home, and then proceeded to sexually assault the woman, the utility worker’s agency relationship with the utility company could be said to have aided him in his sexual assault. If a drive-by shooting was committed using a company car or a police department — or security company-issued gun, then the plaintiff could name the issuing employer. Most open-endedly of all, a plaintiff might even be able to name a tortfeasor’s employer in a drive-by shooting, even if the employer issued neither the gun nor the car, if the tortfeasor bought the gun or the car using his or her salary — -which, after all, he or she obtained by virtue of the employment (i.e., agency) relationship.

Examining transcripts of the committee meetings from the Restatement’s drafting sessions is illuminating, but also ultimately fails to reveal any solid limiting principle that the drafters omitted from — or saw implicit in — the clause’s text. One of the hypotheticals that the Court listed — -that of a utility worker using his badge to gain entry into a home and then raping the housewife — was discussed extensively at the drafting sessions. The Court gets the impression from reading the transcript that the drafters’ consensus was that the aided-in-agency theory should not give rise to vicarious liability under that hypothetical’s facts, ie., that the hypothetical was introduced as a way of pointing out § 219(2)(d) cl. 2’s problematic expanse, as an example of facts that would fall within the clause’s literal language, but which all agreed should not give rise to vicarious liability. See Discussion of Restatement of the Law, Second, Agency (Tentative Draft No. 4), 33 A.L.I. Proe. 314, 372-83 (1956)(“A.L.I. Discussion”). For example, the committee’s presiding officer made the following statement:

Section 219(2)(d) [should] be substituted by a narrower statement of actual cases, instead of saying that the servant is able to accomplish the tort whether it is rape or murder, if that is worse, or stealing silver, which I suppose is not so bad, but which look like transactions which a master would not normally be held liable for. Say “crimes.”

A.L.I. Discussion at 382 (emphasis added). This statement went unchallenged at the meeting, but was, for reasons unclear to the Court, never incorporated into the final Restatement — either in the above-the-line text or in the commentary.

B.COURTS, INCLUDING THE SUPREME COURT OF THE UNITED STATES, ADOPT THE THEORY IN VARIOUS FORMS AND CONTEXTS.

It seems obvious that the Restatement did not intend to open up virtually limitless vicarious liability by way of a short, unexplained, and uncited clause pinned — almost as an afterthought — to the end of a section devoted primarily to much theoretically narrower - grounds of vicarious liability. Courts struggled mightily with § 219(2)(d) cl. 2, some applying it more-or-less as written, see, e.g., Costos v. Coconut Island Corp., 137 F.3d 46 (1st Cir.1998), others declining to adopt it altogether, see, e.g., Doe v. Lago Vista Indep. Sch. Dist., 106 F.3d 1223, 1226 (5th Cir.1997); Dee v. Marriott Int’l, Inc., No. CIV.A. 99-2459, 1999 WL 975125, at *3-4 (E.D.Pa. Oct. 6, 1999); Zsigo v. Hurley Med. Ctr., 475 Mich. 215, 716 N.W.2d 220, 227 (2006); C.B. ex rel. L.B. v. Evangelical Lutheran Church in Am., 726 N.W.2d 127, 135 (Minn.Ct.App.2007) (limiting vicarious liability to torts committed within the scope of employment, but not explicitly mentioning the Restatement or disclaiming the aided-in-agency theory), and still others refraining from taking a position on either side of the aided-in-agency fence, see, e.g., Hart v. Paint Valley Local Sch. Dist., No. C2-01-004, 2002 WL 31951264, at *14 (S.D.Ohio Nov. 15, 2002); Davis v. Fulton Cnty., Ark., 884 F.Supp. 1245, 1263 (E.D.Ark.1995); Mahar v. StoneWood Transp., 823 A.2d 540, 545 (Me.2003); Bowman v. State, 10 A.D.3d 315, 781 N.Y.S.2d 103, 105 (2004); S.J.A.J. v. First Things First, Ltd., 239 Wis.2d 233, 619 N.W.2d 307, 2000 WL 1254149 *8 n. 15 (Wis.Ct.App.2000). Some courts modified the theory, narrowing it by grafting on various extra-textual limiting principles.

The United States Court of Appeals for the District of Columbia Circuit, for example, added an “instrumentality” requirement to the aided-in-agency theory, relying on the telegraph-operator example in § 219’s commentary to hold that “[t]he tort must be one accomplished by an instrumentality, or through conduct[,] associated with the agency status.” Barnes v. Costle, 561 F.2d 983, 996 (D.C.Cir.1977). The D.C. Circuit found no instrumentality in its case, but Costos v. Coconut Island Corp. provides a good example of a case that satisfies the requirement. In that case, the United States Court of Appeals for the First Circuit held a hotel vicariously liable after one of its employees obtained an acquaintance’s room key, entered her room, and raped her, concluding that the room key was an instrumentality of the agency. See 137 F.3d at 50. See also Zsigo v. Hurley Med. Ctr., 716 N.W.2d at 225.

The Supreme Court of the United States gave the aided-in-agency theory its most important application in twin companion cases that it issued on June 26, 1998, holding that the aided-in-agency theory — -narrowed significantly by limiting principles that the Supreme Court, by its own admission, made up on the spot — applies to Title VII workplace-harassment claims. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Kennedy, J.); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (Souter, J.). The opinions hinge heavily on Title VII-specific policy considerations, getting deep into the weeds of the administrative scheme and Congress’ desire to encourage companies to adopt anti-harassment policies, but both opinions contain the same summarizing paragraph:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antihar-assment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the 'defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Burlington Indus., Inc. v. Ellerth, 524 U.S. at 764-65, 118 S.Ct. 2257; Faragher v. City of Boca Raton, 524 U.S. at 807-08, 118 S.Ct. 2275. In a nutshell, these decisions limit the aided-in-agency theory’s applicability in two important ways: (i) the theory applies only to supervisors’ acts against subordinates, and not to coworkers-on-coworker torts, see Burlington Indus., Inc. v. Ellerth, 524 U.S. at 760, 118 S.Ct. 2257 (“Were [the theory interpreted more broadly], an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all coworker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue.”); (ii) vicarious liability is unrebuttable when the supervisor commits a “tangible employment action” — a firing, a passing-over for promotion, or an undesirable reassignment — but is subject to an affirmative defense when the supervisor simply makes the employee uncomfortable, because, where a tangible employment action exists, “there is assurance the injury could not have been inflicted absent the agency relation,” ie., a tangible employment action by a supervisor constitutes an “official act” by the employer, Burlington Indus., Inc. v. Ellerth, 524 U.S. at 761, 762, 118 S.Ct. 2257 (“Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act.”).

The Supreme Court’s cases are as much about modifying general agency principles for use in the Title VII context as they are about doing a descriptive, retrospective analysis of the common law of agency. They did not necessarily alter what aided-in-agency means, but, rather, set forth the manner in which the aided-in-agency theory should apply in the Title VII context. See Faragher v. City of Boca Raton, 524 U.S. at 802 & n. 3, 118 S.Ct. 2275 (calling § 219(2)(d) cl. 2 a “ ‘starting point[,]’ because [the Supreme Court’s] obligation here is not to make a pronouncement of agency law in general or to transplant § 219(2)(d) into Title VTI[; r]ather, it is to adapt agency concepts to the practical objectives of Title VII”). For instance, district judges in the D.C. Circuit continue to apply an instrumentality limitation on the aided-in-agency theory, despite the fact that neither Supreme Court case used the term. See Doe v. Sipper, 821 F.Supp.2d 384, 391-93 (D.D.C.2011).

C. THE SUPREME COURT OF NEW MEXICO ADOPTS THE THEORY.

It is at this point, roughly six years after the Supreme Court of the United States’ twin cases, that the Supreme Court of New Mexico issued Ocana. Ocana was the first, and last, case from any New Mexico court to mention the aided-in-agency theory — or § 219(2), more generally. Like the Supreme Court of the United States’ cases, Ocana involved an employment-discrimination case, this time under the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-1 to -15 (“NMHRA”), New Mexico’s state-law analogue to the federal Title VII. See Ocana, 2004-NMSC-018, ¶ 6, 135 N.M. 539, 91 P.3d 58. In that case, the plaintiff alleged that her supervisor had harassed her continually and severely at the workplace, following her around the store, including into the restroom, touching himself in front of her, and, on one occasion, rubbing his erection against her. See Ocana, 2004-NMSC-018, ¶ 25, 135 N.M. 539, 91 P.3d 58. She sued both her supervisor and her employer under the NMHRA, and for state-law assault, battery, and intentional infliction of emotional distress. See Ocana, 2004-NMSC-018, ¶¶ 7, 29, 135 N.M. 539, 91 P.3d 58. On the NMHRA claim, the Supreme Court of New Mexico adopted the Supreme Court of the United States’ Title VII framework from Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton wholesale. See 2004-NMSC-018, ¶ 26, 135 N.M. 539, 91 P.3d 58. For the state-law claims, however, the Supreme Court of New Mexico went through the following analysis:

Under basic respondeat superior principles, an employer is liable for an employee’s torts committed within the scope of his or her employment. Thus, under these principles, an employer is not generally liable for an employee’s intentional torts because an employee who intentionally injures another individual is generally considered to be acting outside the scope of his or her employment. Intentional torts arising from sexual harassment are generally considered to be outside the scope of employment. Burlington Indus., Inc. v. Ellerth, 524 U.S. at 757, 118 S.Ct. 2257 (“The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment.”). Cf. Coates v. Wal-Mart Stores, Inc., 1999— NMSC-013, ¶ 25, 127 N.M. 47, 976 P.2d 999, 1004 (“Injuries caused by sexual harassment do not arise out of employment.”). Conceding that Kaminski’s alleged torts were committed outside the scope of his employment, Ocana asserts that American may be vicariously liable under the aided-in-agency theory because there was evidence showing that the torts were facilitated by his supervisory status.

Under the aided-in-agency theory, an employer may be held liable for the intentional torts of an employee acting outside the scope of his or her employment if the employee “was aided in accomplishing the tort by the existence of the agency relation.” Restatement (Second) of Agency § 219(2)(d) (1958). As the parties acknowledge, no New Mexico court has yet adopted the aided-in-agency theory in addressing respondeat superior issues. Ocana asserts that we should adopt this theory because our courts have relied upon other sections of the Restatement in determining the scope of an employer’s liability. She also asserts that it would be consistent with New Mexico’s public policy favoring compensation to a victim injured by another’s tortious actions. American, on the other hand, asserts that this theory should not be adopted because our courts have already developed a comprehensive and extensive “body of law which defines scope of employment.” Consequently, American argues that these cases more aptly apply to the case at hand because they address “scope of employment” in the context of sexual harassment and assault. As a result of the parties’ arguments, we discuss whether we should adopt the aided-in-agency theory in the context of sexual harassment.

We do not believe that it would be a radical departure for this Court to adopt the aided-in-agency theory of vicarious liability. New Mexico courts have routinely relied upon the Restatement (Second) of Agency in discussing issues of respondeat superior. Additionally, adopting the aided-in-agency theory would further the policies that underlie tort law. See Trujillo v. City of Albuquerque, 1990-NMSC-083, ¶ 10, 110 N.M. 621, 798 P.2d 571, 574 (“Our fault system of recovery, while by no means indispensable to our society in an abstract sense, today serves the important social functions of redistributing the economic burden of loss from the injured individuals on whom it originally fell, deterring conduct that society regards as unreasonable or immoral, and providing a vehicle by which injured victims may obtain some degree of compensation and satisfaction for wrongs committed against them and by which society may give voice and form to its condemnation of the wrongdoer.” (footnote omitted)), rev’d on other grounds, 1998-NMSC-031, 125 N.M. 721, 965 P.2d 305.

Consequently, the question that we must decide is whether Ocana presented sufficient evidence showing that Kamin-ski was aided by his status as her supervisor in committing his alleged torts. We conclude that she did not. In order to prevail under the aided-in-agency theory, Ocana had to present sufficient evidence showing that Kaminski’s supervisory authority aided him in the commission of his torts. Employees with such authority have been empowered by the employer to make decisions affecting subordinate employees. It is this authority, bestowed by the employer, that gives the supervising employee the ability to injure the subordinate employee. In this sense, the supervising employee is