The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Mary T. Majano, a custodial employee at the Smithsonian
Institution ("Smithsonian"), alleges that Jeanny Kim, a
Smithsonian manager, assaulted and injured her after Ms. Majano
insisted that Ms. Kim show employee identification before
entering a Smithsonian building. According to the complaint, Ms.
Kim became angry, shoved Ms. Majano against a wall, shouted
obscenities, and repeatedly jerked a lanyard that Ms. Majano wore
around her neck.
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 that the United States
should be substituted as the defendant in the case. 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 has considered the arguments of the parties and the
entire record including arguments at a motions hearing before
the Court and briefs addressing the Government's post-discovery motion for summary judgment and determined that
no further evidence or argument is necessary to find that Ms. Kim
was acting within the scope of her employment when the
altercation with Ms. Majano took place. The United States will be
substituted for Ms. Kim as defendant and the complaint dismissed.
In 2003, Mary Majano was employed as a custodial worker at the
Victor Building, the location of some of the Smithsonian's
administrative offices. Plaintiff's Statement of Material Facts
Not In Dispute ("Pltf.'s Facts") ¶ 1.*fn1 Jeanny Kim worked
as Senior Manager of Media and Corporate Development for the
Smithsonian. Deposition of Jeanny Kim ("Kim Dep.") at 9. Ms. Kim
worked out of two offices, one in the headquarters building and
the other in the Victor Building. Id. at 20.
In the wake of the September 11th terrorist attacks, measures
to ensure building security and employee safety were emphasized
and, in June 2003, the Victor building was on alert, operating
under the national emergency code of orange or yellow. Pltf.'s
Facts ¶¶ 4, 5. Employees were required to show identification to
the security guards before entering the building's parking
garage. Majano Dep. at 5.*fn2 From the garage, access to the
building itself was controlled by use of electronic access key
cards ("Kastle cards"), which had to be "swiped" to unlock the
doors. Custodial employees, including Ms. Majano, were instructed
not allow anyone to "piggyback," or enter the building behind a custodial employee, unless that
person presented Smithsonian identification. Pltf.'s Facts ¶¶ 4,
6; Majano Dep. at 16-19. Ms. Kim claims that she was not aware of
any policy restricting such access to the building without
identification. Kim Dep. at 34-35; Pltf.'s Facts ¶ 12.*fn3
As she arrived for work on the afternoon of June 17, 2003, Ms.
Majano entered the non-public, secured elevator lobby connected
to the Victor building's parking garage. Pltf.'s Facts ¶ 4. Ms.
Kim, who had been waiting to enter the elevator lobby, followed
Ms. Majano shouting, "Hey, Hey." Id. ¶ 7 (quoting Deposition of
Mary Majano ("Majano Dep.") at 7-8). Before the door shut, Ms.
Kim inserted her foot and propped the door open. Id. As the two
stood at the doorway, Ms. Majano asked to see Ms. Kim's
identification. Plaintiff's Response to Statement of Material
Facts Advanced by the United States ("Pltf.'s Fact Response") ¶
10 (quoting Kim Dep. at 106); see also Pltf.'s Facts ¶ 8
(citing to Majano Dep. at 7-10). Rather than show her
identification, Ms. Kim "placed her hand upon the Plaintiff's
chest, and pushed Plaintiff into the secured area." Compl. ¶ 7;
see Pltf.'s Facts ¶¶ 8, 9.
Feeling "really frightened," Ms. Majano moved away from Ms. Kim
and toward the building elevators. Id. ¶ 15 (quoting Majano
Dep. at 11). Ms. Kim was at her heels, calling Ms. Majano
"stupid" and using obscenities. Id. As they neared the
elevators, Ms. Kim seized a lanyard suspended from Ms. Majano's
neck and yanked it with such violence that Ms. Majano's Kastle
card, which was attached to the lanyard, snapped in two. Id.
Ms. Majano hurried to enter the now-open elevator doors. Id. ¶ 16. Ms. Kim followed and pushed the
button for the upper floor where her Victor Building office was
located. Id.*fn4 Neither woman spoke as the elevator
The duration of this encounter is contested. Ms. Kim initially
testified that it lasted a "couple of minutes at the most,
maybe." Kim Dep. at 146. She then stated that the "whole thing
couldn't have taken more than a few minutes." Id. at 148. She
also surmised, "I think maybe the whole thing probably took two
minutes." Id. By contrast, Ms. Majano reported to the nurses
that the attack continued "for quite some time." Notes of
Margaret Isley, at 1; but see Majano Dep. at 13 ("It wasn't too
long."); id. ("She didn't take too long.").
Soon thereafter, Ms. Majano reported the incident to building
security who noticed bruises and welts on her neck.*fn5
Jones Dep. at 21-24. Accompanied by security personnel, Ms.
Majano waited at the garage exit to identify her attacker.
Pltf.'s Facts ¶ 18. Although Ms. Kim was identified and stopped
by security personnel, she hastened to exit the building stating,
"I don't have time for this mess. I'll talk to my boss tomorrow."
Id. (quoting June 17, 2003 Notes of OPS Officer Lee Graves;
June 17, 2003 Incident Report).*fn6
The next day, faint marks were still visible on Ms. Majano's
neck. Id. ¶ 20. The Smithsonian Health Service Unit issued prescriptions for
anti-anxiety, anti-inflammatory, and pain medication and advised
her to take sick leave for three days. Id. ¶¶ 20-21.
Ms. Kim vigorously denied the accusations in a June 18, 2003
written statement, asserting, "I did not accost, assault, or
otherwise touch this woman at any time during the course of our
interaction." Statement in Response to Inquiry; see Pltf.'s
Facts ¶ 22. She also stated, "I went so far as to offer my
employee badge which I held in one free hand. . . ." Id. Her
denials were shortlived. Ms. Kim later admitted that she "put her
hand on [Ms. Majano's] chest" and that her identification badge
"may not have been visible." Deposition of Hugh Carew ("Carew
Dep.") at 28-29); see Pltf's Facts ¶ 22.*fn7
After taking the recommended sick leave, Ms. Majano returned to
work. But the pain worsened as the condition of her neck
deteriorated. Pltf.'s Fact Response ¶ 19. She was forced to quit
her job five months later. Id. She underwent surgery in
December 2003 after magnetic resonance imaging of Ms. Majano's
neck showed a "large" cervical herniated disk. Pltf.'s Facts ¶
24; Pltf.'s Fact Response ¶ 19.
Ms. Majano's treating physician attributed the ruptured disk to
the trauma caused by Ms. Kim when she yanked the lanyard hanging
around Ms. Majano's neck. Although Ms. Majano's doctor opines
that "normal" and "moderate degenerative changes" in her neck
"may have mildly predisposed her to the disk rupture," he argues
that the size of the ruptured disk indicates that it is not attributable to a pre-existing, asymptomatic herniation.
Pltf.'s Facts ¶ 24.*fn8 ...