The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
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.*fn2 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.
1. Mary J. Majano was a custodian employed in the Victor Building by the Smithsonian Institution on June 17, 2003. Tr. I at 10 (Majano).
2. The Victor Building is an office building owned by the Smithsonian in 2003 but not exclusively inhabited by Smithsonian employees.*fn4 It is not on the Mall but is in downtown D.C.
3. Ms. Majano is a native speaker of Spanish, who is an immigrant to this country. She does not speak or understand much English. Two interpreters were employed at the hearing for the purpose of interpreting Ms. Majano's testimony and to interpret English-language testimony for her.
4. To enter the Victor Building, employees had to use an access card, variously called a Kastle Card, a Key Card, or a proximity card. Tr. I at 60 (Majano); Tr. II at 101-02 (Kim). It was a plain white card. Tr. II at 101-02 (Kim). All of the custodial employees at the Victor Building, including Ms. Majano were given strict instructions on security. Those instructions included a prohibition on "piggybacking," i.e., "when an authorized employee uses the card access or an access card to gain access to a section of the building, and somebody else tries to come in using their - that person's access card to get past the door." Tr. II at 73 (Carew).
5. Willie Jones, assistant security manager at the Victor Building, indicated that piggybacking was a violation of security procedures. Tr. I at 83 (Jones). Similarly, Daniel Davies, facilities manager at the Victor Building, indicated that he heavily emphasized the need to comply with security procedures. Tr. II at 39 (Davies). Via email, Mr. Davies directed managers at each unit to prohibit piggybacking. Tr. II at 42, 44-45 (Davies).
6. Despite the fact that piggybacking violated security procedures, Tr. II at 73-74 (Carew), Hugh Carew, a Smithsonian security services division investigator, also admitted that security training of the staff at the Victor Building was "uneven from unit to unit." Tr. II at 85 (Carew).
7. Because of her security training, Ms. Majano would not allow piggybacking even if she knew the person attempting to enter the Victor Building behind her. "They can't come in if they don't have their key. They can't come in." Tr. I at 60 (Majano) (emphasis added).
8. Kastle Key Cards were not the same as Smithsonian identification or "ID" cards. The plain white Key Cards unlocked secure doors. In contrast, Smithsonian ID cards were blue and bore a photo of the ID holder. Tr. II at 102-03 (Kim).
9. Sometimes witnesses used the word "ID" to mean Kastle Card.*fn5 When witnesses used the term "ID" card, it was not always clear whether the witness meant the blue photo ID or the white Kastle Key Card. Also, it was not clear whether the anti-piggybacking policy required employees to ask to see a Kastle Card, an ID card, or both.
10. Ms. Majano testified, "We had meetings every month. And we were not allowed to let people enter who we did not know and who did not have ID." Tr. I at 60 (Majano) (emphasis added). It is not clear whether she meant Kastle Card, ID card, or both. Similarly, Mr. Carew testified that some -- but not all -- staff were instructed to confront people trying to enter the Victor Building without their "IDs." Tr. II at 85 (Carew). It is not clear whether he meant Kastle Card, ID card, or both.
11. Custodial employees understood that they would be fired if they permitted someone else to piggyback. John Newton, Ms. Majano's co-worker in building services at the Victor Building, testified "we were told not to let anyone in with our ID because they had a problem with stuff being missing in the building. And like what they would do is go to the computer and whoever [sic] ID would show up, they would go to that person and that person would be fired." Tr. II at 21 (Newton) (emphasis added). See also Tr. II at 24 (Q. You testified that you were told not to let anyone else in on account of being fired? A. Right.) (Newton). Although Mr. Newton used the term "ID," he undoubtedly meant Kastle Key Card as that is the card that would allow an employee to enter the building and that would reveal his entrance on a computer log.
12. Mr. Davies indicated that he could expect arguments to break out about piggybacking. "Q. And so they would be expected to confront somebody who was trying to come in, and say please show me your ID or something to that effect? A. Yeah, at least at that level. Q. And is this the situation in which you would expect arguments to break out? A. Could." Tr. II at 45 (Davies).
13. Mr. Carew also indicated that it was possible for arguments to arise "about showing IDs among people showing up for work." Tr. II at 85-86 (Carew).
14. On June 17, 2003, Ms. Majano arrived for her work shift and entered the Victor Building from a secured door on the P-1 level of the parking garage. She heard Ms. Jeanny Kim behind her. Tr. I at 11 (Majano).
15. Then, either Ms. Majano turned around and partially reopened the door, Tr. I at 11-12 (Majano), or Ms. Kim stuck her foot and then her entire body into the doorway to stop the door from closing. Tr. II at 112 (Kim). The women did not know one another. Tr. I at 50 (Majano); Tr. II at 117 (Kim). "I didn't know who she was, I had never seen her before." Tr. II at 143 (Kim).
16. As she was trained, Ms. Majano immediately demanded that Ms. Kim show her identification, saying "your ID?" Tr. I at 12-13 (Majano); Tr. II at 112 (Kim). Ms. Kim, who was carrying a briefcase in one hand, a purse over her shoulder, file folders under her arm, and a wallet in her hand, held up her blue Smithsonian ID, ...