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stating that “no claim may be brought against the United States that arises out of an assault and battery unless the tort was committed by a federal investigative or law enforcement officer”
Summary of this case from Hicks v. Office of the Sergeant at Arms for the United States SenateOpinion
Civil Action No. 04-201 (RMC).
April 23, 2008.
David C. Gray, Bethesda, MD, for Plaintiff.
MEMORANDUM OPINION
Mary T. Majano, a custodial employee at the Smithsonian Institution ("Smithsonian"), alleges that Jeanny Kim, a manager in the Smithsonian Business Ventures unit, assaulted and injured her after Ms. Majano insisted that Ms. Kim show employee identification before entering a Smithsonian building. According to the Complaint, filed initially in D.C. Superior Court, Ms. Kim became angry, shoved Ms. Majano against a wall, shouted obscenities, and repeatedly jerked a lanyard that Ms. Majano wore around her neck, injuring her neck vertebrae. The Complaint alleges three Counts: Count I, Assault; Count II, Battery; and Count III, Intentional Infliction of Emotional Distress.
The United States removed the action to federal court. At the same time, it filed a certification, pursuant to 28 U.S.C. § 2679(d), that Ms. Kim was acting within the scope of her employment at the time of the incident and a motion to substitute the United States as the defendant in the case. See Notice of Removal, Compl. and Certification [Dkt. #1]. Because such a substitution would lead to dismissal of the case under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"), Ms. Majano challenges the certification that Ms. Kim was acting within the scope of her employment.
The Court previously determined on summary judgment that Ms. Kim was acting within the scope of her employment. See Mem. Op. [Dkt #40] filed Apr. 11, 2005. Ms. Majano appealed, and the D.C. Circuit remanded for an evidentiary hearing on scope of employment. Majano v. United States, 469 F.3d 138, 142 (D.C. Cir. 2006). The Court held the required evidentiary hearing on January 14-16, 2008, during which it was extremely liberal in admitting exhibits and testimony on Ms. Majano's behalf. The two protagonists described very different scenaria regarding the events in question. From the entire record, including specifically the demeanors and attitudes of the two women as witnesses, the Court makes the following findings of fact and conclusions of law.
Citations to testimony at the evidentiary hearing are to the transcript of January 14, 15, or 16, 2008, and are cited as "Tr. I," "Tr. II," or "Tr. III" respectively, with a page number and a parenthetical indicating the name of the witness.
I. FINDINGS OF FACT
The Court refers the reader to its earlier opinion in this matter, Mem. Op. filed Apr. 11, 2005, and to the opinion of the D.C. Circuit, Majano, 469 F.3d 138, for background facts. The evidentiary hearing was focused on whether Ms. Kim was acting within the scope of her employment, and this Opinion will remain so focused.
i.e. key. ID. ID See also see also See th th See, e.g. see also see also Id.
There was a steakhouse and a coffee shop in the building. Tr. II at 40 (Davies).
The reverse was not true. Witnesses did not say Kastle or Key Card if they meant the blue photo ID.
Ms. Majano testified that Ms. Kim carried a purse, Tr. I at 22 (Majano) and a thin folder, and she carried them for the duration of the incident at issue here. Id. at 55. Ms. Kim testified that in addition to her purse and folders, she carried a briefcase and her wallet. Tr. II at 108 (Kim). She stated that she carried these items throughout the course of her interaction with Ms. Majano. Tr. II at 117 (Kim).
II. CONCLUSIONS OF LAW
Because the United States Attorney (as designee of the Attorney General) has certified that Ms. Kim was acting within the scope of her employment, Ms. Majano bears the burden of proving otherwise. See Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006). The Court makes this determination. See Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994); accord Rasul v. Myers, 512 F.3d 644, 659 n. 8 (D.C. Cir. 2008).The scope of employment of a federal employee is governed by the law of the place where the employment relationship exists. Majano v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006); Haddon v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995). Thus, because Ms. Kim was employed by the Smithsonian in Washington, D.C., District of Columbia law applies.
To determine whether an employee was acting within the scope of employment, the District of Columbia looks to the Restatement (Second) of Agency, which provides:
Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master; and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
Restatement (Second) of Agency § 228(1). "Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master." Id. § 228(2)); accord Rasul, 512 F.3d at 655.
Under the first prong of the Restatement test, to qualify as conduct "of the kind the individual was employed to perform" the employee's actions must have been either of the same nature as that authorized by the employer or "incidental to the conduct authorized." Haddon, 68 F.3d at 1424 (quoting Restatement (Second) of Agency § 229(1)). In Haddon, the Circuit held that whether conduct is "incidental" depends on whether the conduct is a "direct outgrowth" of an employment assignment:
According to the D.C. Court of Appeals, conduct is "incidental" to an employee's legitimate duties if it is "foreseeable." "Foreseeable" in this context does not carry the same meaning as it does in negligence cases; rather, it requires the court to determine whether it is fair to charge employers with responsibility for the intentional torts of their employees. To be foreseeable, the torts must be a direct outgrowth of the employee's instructions or job assignment.Haddon, 68 F.3d at 1424 (internal quotations and citations omitted). In Council on Am. Islamic Relations, 444 F.3d at 662, the Circuit explained that whether conduct is incidental depends "on the underlying dispute or controversy, not on the nature of the tort." Id. at 664 (internal quotation omitted). The proper inquiry is "broad enough to embrace any intentional tort arising out of a dispute that was originally undertaken on the employer's behalf." Id.; see also Johnson v. Weinberg, 434 A.2d 404, 408 (D.C. 1981) (where the alleged tort is the outgrowth of a job-related controversy, then the employer remains liable, since the master and servant relationship is not broken).
The case at hand is analogous to Caesar v. United States, 258 F. Supp. 2d 1 (D.D.C. 2003), where the plaintiff sued a coworker after a verbal argument regarding a work project that escalated into a physical confrontation. "[F]ollowing their verbal exchange, Ms. Robinson slammed her office door into Ms. Caesar using her full body weight, hitting Ms. Caesar in the back of her right shoulder. . . ." Id. at 2. After Ms. Caesar brought suit, the United States Attorney certified that Ms. Robinson was acting within the scope of her employment at the time of the dispute. Id. The court found that because the alleged tortious conduct "occurred during or immediately following a dispute regarding how a particular project Ms. Robinson was working on was being handled, it is clear that it was triggered by a dispute over the conduct of the employer's business and arose naturally and immediately between [Ms. Robinson] and plaintiff . . . in connection with [her] job." Id. at 4 (quotation marks and citations omitted). Accord Rasul, 512 F.3d at 658-69 (acts of torture allegedly committed by military personnel against detainees at Guantanamo Bay, Cuba, were within the scope of employment because the conduct was incidental to authorized conduct — the torture was intended as an interrogation technique); see also Harbury v. Hayden, No. 06-5282, at *16 (D.C. Cir. Apr. 15, 2008) (CIA agents acted within the scope of their employment when they hired and managed informants, conducted covert operations, gathered intelligence, and worked with individuals who physically abused and killed Ms. Harbury's husband, as their actions were foreseeable and a direct outgrowth of their intelligence activities).
In Rasul, the court "rested its scope-of-employment analysis on several D.C. Cases holding that seriously criminal and violent conduct can still fall within the scope of a defendant's employment under D.C. law — including sexual harassment, a shooting, armed assault, and rape." Harbury, No. 06-5282, at *15-16 (citing Howard Univ. v. Best, 484 A.2d 958, 987 (D.C. 1984) (university dean acted within the scope of his employment when he sexually harassed a faculty member during meetings); Johnson, 434 A.2d at 409 (laundromat employee acted within the scope of his employment when he shot a customer; the assault arose out of the transaction which initially brought the customer to the premises (to launder shirts) and was triggered by a dispute over the conduct of the employer's business (missing shirts)); Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir. 1976) (finding that the assault and rape of plaintiff by a mattress deliveryman was within the scope of employment because it "arose naturally and immediately" between the deliveryman and the plaintiff regarding the plaintiff's request to inspect the mattress before payment and the deliveryman's insistence on cash rather than a check — the customer testified that the deliveryman had said, "if I did not give him cash money he was going to take it on my ass.")).
"Many states and D.C. apply the scope-of-employment test very expansively, in part because doing so usually allows an injured tort plaintiff a chance to recover from a deep-pocket employer rather than a judgment-proof employee." Harbury, No. 06-5282, at *16 n. 4.
The cases emphasized by Ms. Majano are distinguishable. In Haddon, an electrician at the White House approached a White House chef and threatened to follow him home and beat him unless the chef withdrew an equal employment opportunity claim the chef had lodged against a third person. Haddon, 68 F.3d at 1422. The D.C. Circuit found that the alleged tort was unrelated to the electrician's official duties and was outside the scope of his employment. Id. at 1426. The tort "did not arise directly out of his instructions or job assignment as a White House electrician." Id. at 1425. Similarly, in Penn Central Transportation Co. v. Reddick, 398 A.2d 27 (D.C. 1979), the D.C. Court of Appeals found that a railroad employee was not acting within the scope of his employment when he kicked a taxicab driver. The railroad employee had worked a shift on a train that started in Virginia and finished in New Jersey. Id. at 28. After completing the shift, the employee traveled by train to Union Station in Washington, D.C. There, he sought a cab to take him back to Potomac Yard in Virginia. The taxi driver wanted to use the rest room first and the employee did not want to wait, so the employee assaulted the taxi driver. Id. at 29. The court found that the employee's actions were not an outgrowth of his job instructions or job assignment nor an integral part of the employer's business, that of running a railroad. Id. at 33.
In Haddon and Penn Central, the employees' actions were not "incidental" to conduct authorized by their employer — that is, their actions were not a "direct outgrowth" of their official duties and the courts determined that it was not fair to charge their employers with responsibility for the intentional torts of the employees. See Haddon, 68 F.3d at 1424. In Haddon, the electrician threatened a chef with harm if he did not withdraw an EEO claim against a third person, actions and a dispute wholly unrelated to the electrician's job. In Penn Central, the employee was not even within the time and place of his employment since he had completed his shift and had left the work site.
Here, it is undisputed that Ms. Kim was entering the Victor Building to perform work on behalf of the Smithsonian, which she needed to access by way of the elevator. Ms. Majano was also arriving for work. The women did not know one another, and they did not discuss anything other than Ms. Kim's desire to enter the building and Ms. Majano's desire to see Ms. Kim's identification. There is no allegation of any personal animosity or motive in this case. Their confrontation was a result of: (1) Ms. Majano's belief that she would be fired if she permitted anyone to "piggyback;" (2) Ms. Kim's belief that access to the Victor Building was permitted upon display of a photo identification; (3) Ms. Kim's belief that Ms. Majano was unjustly impeding Ms. Kim's entry when Ms. Kim had already shown her identification; and (4) Ms. Majano's repeated demands for "ID" when she meant to demand to see Ms. Kim's Kastle Key Card. These conflicting understandings of security rules and what, exactly, Ms. Majano wanted to see — compounded with Ms. Kim's impatience — led to the confrontation between the women.
The Court of Appeals wondered if Ms. Kim's actions went from scope of employment at the doorway to personal animosity in the elevator lobby, 40 feet away. Majano, 469 F.3d at 142. This Court concludes not. The entire incident, from beginning to end, lasted no more than three minutes and possibly less. It was a single fluid encounter: Ms. Kim pushed her way in; the two women walked down the hallway, each talking to the other but neither fully understanding; they reached the elevator lobby and Ms. Majano one more time demanded Ms. Kim's ID, causing Ms. Kim to demand to see Ms. Majano's ID and then to grab at it and jerk it. There was no break in Ms. Majano's demands to see "ID" and no break in Ms. Kim's hurried impatience with those demands.
Such a confrontation was foreseeable and should have been "expectable" by a reasonable employer. The Smithsonian provided different security training and information to its employees and stressed security concerns differently. Employees with differing languages, education levels, and cultures could be expected to encounter each other at secured doorways. Mr. Davies and Mr. Carew both testified that arguments could break out at the secured doorways when one employee tried to prevent another from piggybacking. Whether it was really fair for the Smithsonian to require custodial employees without English-language skills to enforce the anti-piggybacking policy is not the question. Clearly Ms. Majano was doing what she had been told, even if her English were poor and her demands unclear. Just as clearly, Ms. Kim's transit to her office was a necessary everyday occurrence. The contretemps between them was a direct outgrowth of their jobs and thus was within the scope of employment of each of them.
The dispute over whether Ms. Kim would be permitted entry into the Victor Building and into the elevator arose naturally and immediately from these circumstances. During the confrontation with Ms. Majano, Ms. Kim acted, at least in part, with a purpose to serve Smithsonian — that is, to proceed to her office in order to conduct Smithsonian business. The conduct of Ms. Kim, while not pleasant, was of the kind she was employed to perform, i.e., entering the building to go to work and checking the ID of a custodial employee of whom she wanted to complain. The incident occurred within authorized time and space limits and it cannot be said that this use of force, with its unintended consequences to Ms. Majano, could be unexpectable under the circumstances. Thus, Ms. Kim's actions as she entered the building and while she proceeded to the elevator to go to her office were within the scope of her employment.
The Federal Employees Liability Reform and Tort Compensation Act of 1988 ("FELRTCA") confers immunity on federal officials by making a claim under the FTCA against the United States the exclusive remedy for torts committed by U.S. employees in the scope of their employment. United States v. Smith, 499 U.S. 160, 163 (1991); see 28 U.S.C. § 2679(b)(1) ("The remedy against the United States provided by sections 1346(b) and 2672 of this title . . . arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages. . . ."). Because Ms. Kim acted within the scope of her employment, Ms. Majano's exclusive remedy lies under the FTCA.
Although the FTCA waives sovereign immunity for many tort claims, the United States retains immunity from specified actions. As relevant here, no claim may be brought against the United States that arises out of an assault and battery unless the tort was committed by a federal investigative or law enforcement officer. 28 U.S.C. § 2680(h). Because Ms. Kim is not an investigative or law enforcement officer, the FTCA excludes Count One (assault) and Count Two (battery) of the Complaint.
Count Three, alleging intentional infliction of emotional distress, is not explicitly excluded from the FTCA. However, the FTCA also excludes "any claim arising out of" any of the enumerated torts. 28 U.S.C. § 2680(h). Count Three alleges that "Plaintiff was tremendously frightened and made hysterical by the Defendant's actions, and . . . the Defendant intentionally caused Plaintiff severe emotional distress." Compl. ¶¶ 20-21. As the "actions" referenced are the basis for Ms. Majano's assault and battery claims, Count Three must be excluded as "arising out of" a tort specifically excluded under 28 U.S.C. § 2680(h). See Koch v. United States, 209 F. Supp. 2d 89, 94-5 (D.D.C. 2002), aff'd, No. 02-52222, 2002 WL 31926832 (D.C. Cir. Dec. 31, 2002) (finding that a claim for intentional infliction of emotional distress was excluded). In sum, Ms. Majano's Complaint is barred by the FELRTCA and by the FTCA and must be dismissed.
Although Ms. Majano is barred from pursuing a civil suit against both Ms. Kim and the United States, it may be possible for her to recover for her injuries under the Federal Employee Compensation Act ("FECA"), 5 U.S.C. § 8102, which permits federal employees to receive compensation for injuries sustained while in the performance of their duty.
III. CONCLUSION
For the foregoing reasons, this case will be dismissed. A memorializing order accompanies this Memorandum Opinion.