Federal Employee Not Always Protected by Uncle Sam

A federal employee is not always acting as an employee of the federal government. In this case, a court ruled that whether an agency employee was acting in an official capacity is an issue to be resolved by a jury.

A Smithsonian Institution employee won an important round in her legal battle to sue a fellow employee personally for allegedly assaulting her at work. (Majano v. United States, C.A. DC Circuit No. 05-5200, 12/1/06). The district court had tossed Majano’s complaint on a summary judgment motion. However, the appeals court has now overturned that lower court decision and sent the case back for a trial on the merits. The facts are taken from the appeals court’s decision.

Mary Majano was a custodian at the Smithsonian’s Victor Building. She was entering the building through an unmonitored security door and heard another employee calling her to hold the door. As supervisors had instructed her, Majano asked the other employee, Ms. Kim, to show her ID. Instead, Kim pushed her way in past Majano. A verbal disagreement ensued as both women walked down the hallway to an elevator. At that point, Majano alleges that Kim grabbed and yanked on Majano’s badge holder around her neck. Majano experienced “continual pain and discomfort” which was diagnosed as a herniated disk in her neck caused by the incident. She had neck surgery, quit her work at Smithsonian, and remains disabled from work. (Opinion p. 3)

Majano sued Kim in her personal capacity in the local D.C. court, seeking damages for Kim’s assault. The United States Attorney General certified that Kim’s actions had occurred in the performance of her official duties, and therefore Majano’s suit had to be against the United States and not against Kim personally. As typically happens in such a situation, the case was ordered removed from the local court and transferred to federal district court.

The federal district court granted the U.S. motion for summary judgment and threw the suit out. The appeals court has now reversed and remanded the case for trial, dealing the government and Ms. Kim setbacks. The appeals court ruled that the scope of employment question was the issue in the case and it was “best resolved by a jury.” (p. 4) The court states, “…[W]e believe that a reasonable jury could conclude that Kim was not motivated by a desire to serve the Smithsonian when she yanked Majano’s lanyard….” (p. 6) Here’s how the court summarized: “Kim had a duty to report to work. Her forcible entry into the building appears to be motivated, at least in part, by her desire to fulfill that duty. But once she gained access to the building, Kim’s assault of Majano has all the markings of an independent trespass. The assault was violent and unprovoked and took place after Kim had walked approximately 30-feet down a hallway well inside the building.” (p. 8)

Let this case serve as a caution. Employees will not always be able to fall back on their government employer to step into the middle of lawsuits such as this one.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.