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MAJANO v. KIM

April 11, 2005.

MARY T. MAJANO, Plaintiff,
v.
JEANNY KIM, Defendant.



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

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.

  BACKGROUND

  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 ascended.

  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 ...


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