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Workman v. Bissessar

United States District Court, District of Columbia

August 23, 2017

JOAN WORKMAN, Plaintiff,
v.
KENRICK BISSESSAR, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

         Plaintiff Joan Workman, proceeding pro se, is an employee at the Smithsonian Institution's Renwick Gallery (“the Smithsonian”) in Washington, D.C. On May 18, 2017, she filed a complaint in the D.C. Superior Court, alleging that her supervisor at the Smithsonian, defendant Kenrick Bissessar, “walk[ed]-up on [her] back [in] a threatening manner at work.” Dkt. 1-3 at 5. She also filed motions for a temporary restraining order (“TRO”) and a preliminary injunction, asserting that the “harassment” she was experiencing at her job caused her to “fear for [her] life.” Id. at 12; see also Id. at 1-4; 13. Workman's complaint does not seek monetary damages but, rather, requests only that the Court issue “a stay-away order” to Bissessar. Id. at 3.

         Acting on Bissessar's behalf, the U.S. Attorney's Office filed a notice of removal pursuant to 28 U.S.C. § 1442(a)(1), see Dkt. 1, and, nine days later, filed a motion to dismiss Workman's complaint and an opposition to her motions for a TRO and a preliminary injunction, see Dkt. 3. The Court held a hearing on Workman's motion for a TRO on June 15, 2017, and, after receiving the Smithsonian's assurance that Bissessar and Workman would not be scheduled to work during the same shifts until Workman's motions were resolved, the Court denied Workman's request for a TRO. See Minute Entry of June 15, 2017. The next day, the Court ordered that Workman respond to Bissessar's motion to dismiss and opposition to her motion for a preliminary injunction on or before July 7, 2017. Dkt. 7. After Workman failed to file a timely response, the Court ordered her to show cause on or before August 4, 2017, why her case should not be dismissed for failure to prosecute or why the Court should not rule on the pending motions to dismiss and for preliminary injunction based on Bissessar's arguments alone. Dkt. 9. To date, Workman has failed to respond to either of the Court's orders.

         Because the Court concludes that Workman has failed to demonstrate a likelihood of success on the merits or that she will suffer an irreparable injury in the absence of immediate relief, the Court will DENY Workman's motion for a preliminary injunction.

         The Court will DEFER ruling on Bissessar's motion to dismiss-which raises, among other defenses, failure to effect service-until the time to serve pursuant to Federal Rule of Civil Procedure 4(m) has expired. In light of Workman's apparent failure to effect service to date, however, the Court will order that she either cause process to be served upon Bissessar and proof of service to be filed with the Court or establish good cause for failure to do so no later than September 5, 2017. Failure to make such a filing will result in dismissal of this case.

         I. BACKGROUND

         For the past eighteen months, Workman has been employed as a building services worker at the Smithsonian, providing janitorial services at the Renwick Gallery on a part-time basis, including over weekends. Dkt. 3-1 at 1 (Smith Decl. ¶ 3). Bissessar, a facilities services supervisor at the Smithsonian, supervises Workman's shift approximately every third weekend. Id. (Smith Decl. ¶ 4).

         On August 27, 2016, Bissessar sent Workman home early, “charging her [a]bsent without [l]eave, for failing to clean the museum restrooms.” Id. (Smith Decl. ¶ 5). Workman “objected to the treatment and reported to [her] supervisors” that, during her interaction with Bissessar, he had “yelled at her and made her feel unsafe.” Id.; see also Dkt. 6-1 at 3-4 (written statements from Workman dated August 31, 2016, and September 28, 2016, describing Bissessar “yelling” at her, “following [her] in a threat[en]ing man[n]er [and] saying . . . go home, ” and “harass[ing] and threaten[ing] [her] by wa[l]king all up on [her] back”). The assistant building manager looked into the incident and, after requesting written statements from both Workman and Bissessar and interviewing other Smithsonian employees, he sustained Bissessar's “[absent without leave] action.” Dkt. 6-1 at 1-2 (Bradd Decl. ¶¶ 4-5, 7). He also determined that there was no “evidence to support” Workman's “allegations of harassment, ” nor did he find any evidence of “physical contact between [Bissessar] and [Workman] during the August 2016 incident.” Id. at 2 (Bradd Decl. ¶ 7).

         On March 12, 2017, Bissessar and Workman had another antagonistic interaction during which “Workman ignored and walked away from [Bissessar] while he was speaking to her.” Id. (Bradd Decl. ¶ 8); see also Dkt. 3-1 at 2 (Smith Decl. ¶ 7). After “look[ing] into the incident, ” the assistant building manager issued Workman a letter of reprimand for insubordination. Dkt. 6-1 at 2 (Bradd Decl. ¶ 8). Workman did not assert that the March incident involved any physical contact between her and Bissessar, and the assistant building manager found no evidence to suggest that any had occurred. Id.

         Two months later, Workman initiated this action by filing a complaint against Bissessar in D.C. Superior Court. See Dkt. 1-3 at 5-9. Workman alleges that Bissessar “follow[ed] [her]” and “walk[ed]-up on [her] back with a threatening manner, ” id. at 5, and she asserts claims for “[a]ssault and [b]attery” and “harassment, ” id. at 8. She does not, however, seek money damages, see Id. at 5 (demand in the sum of “-0-”), but, rather, as explained in the accompanying motions for a TRO and a preliminary injunction, asks only that the Court “give [her] a stay-away order” so that she is no longer left “alone” with Bissessar “at work, ” id. at 1; see also Id. at 3 (“I need a stay-away order at work from [Bissessar].”).

         Bissessar removed the case to this Court pursuant to 28 U.S.C. § 1442(a)(1) (permitting removal of suits against federal officers) on June 5, 2017, see Dkt. 1, and the Court held a hearing to address Bissessar's motion for a TRO on June 15, 2017. In the course of that hearing, the Court engaged in a lengthy colloquy with Workman in an attempt to discern if there was ever any physical contact between her and Bissessar. Rather than directly respond, however, Workman repeatedly stated only that Bissessar was “all up on [her] back, ” “was walking up on” her, and was “very close” to her, which made her feel “uncomfortable.” At one point, Workman did state that she “felt . . . physical contact” during an altercation, but later, when the Court asked what she meant by that, Workman again explained that Bissessar “was close” to her and “up on [her].” She also said that “he wasn't shoving, he wasn't pushing.” And, when the Court asked if Workman simply meant that Bissessar was “close to” her, Workman responded, “Yeah, very, very close.” In the course of the hearing, the Court explained to Workman that, before issuing an injunction, it would need “evidence of an actual threat to [her] personal safety.” As the Court further explained, that evidence could take the form of a declaration attesting to what happened, and it informed her that “just [because] you don't have another witness . . . [that] doesn't mean [that] you don't have evidence;” “you were present, you were there[, ] and you can . . . describe in detail what happened.” The Court also presented Workman with the option of taking the stand and providing testimony under oath and subject to cross-examination. Workman repeatedly declined to accept that invitation, stating: “No, I don't want to, I don't want to. I'm just sick of it, ” and “I don't want to talk about anything anymore. I['ve] . . . talked, talked, talked, I'm tired.” Finally, in the course of the hearing, the Smithsonian represented that it would avoid scheduling Bissessar and Workman to work at the same time until Workman's motions were resolved. After the hearing, moreover, the Smithsonian confirmed that it would “not schedule . . . Workman to work with . . . Bissessar until the Court rule[d] on . . . Workman's motion” for a preliminary injunction. Dkt. 6 at 1.

         At the conclusion of the hearing, the Court denied Workman's motion for a TRO. The Court explained that, in order to receive the relief she had requested, Workman “need[ed] to show [that] [she] ha[d] a likelihood of success on the merits of [her] claim, ” but that, based on the record then before it, the Court could not discern the nature of her claims or her legal theories as to why she was entitled to relief. The Court also noted that Workman had failed to provide any evidence suggesting that she was “likely to be subject[ed] to an assault . . . in the future” or that she was likely to suffer any other type of irreparable injury.

         The following day, the Court set a briefing schedule on the remaining motions- Workman's motion for a preliminary injunction and Bissessar's motion to dismiss-and informed Workman of the consequences of failing to respond to Bissessar's arguments or failing to offer evidence in support of her motion for a preliminary injunction. Dkt. 7. Under that schedule, Workman was required to file a brief and evidence in support of her motion for a preliminary injunction and to file a brief in opposition to Bissessar's motion to dismiss on or before July 7, 2017. Id. A week after that deadline passed, the Court ordered Workman to show cause by August 4, 2017, why her case should not be dismissed for failure to prosecute or why the Court should not rule on her pending motion for a preliminary injunction and Bissessar's motion to dismiss based on Bissessar's arguments alone. Dkt. 9. To date, however, the Court has not received a response from Workman to either of these orders and has not received any evidence or argument supporting Workman's motion for a preliminary injunction or argument in opposition to Bissessar's motion to dismiss.

         II. ...


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