United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2006 Decided December 1, 2006
No. 05-5200
MARY T. MAJANO,
APPELLANT
v.
UNITED STATES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00201)
David C. Gray argued the cause and filed the briefs for
appellant.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant
U.S. Attorney, entered an appearance.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Appellant Mary T. Majano seeks
damages for injuries she suffered when Jeanny Kim, a fellow
employee at the Smithsonian Institution, allegedly assaulted her
at work. Under the terms of the Westfall Act, 28 U.S.C.
§ 2679(d)(1), federal employees are immune from state tort
lawsuits for money damages if their tortious conduct occurred
while they were acting within the scope of their employment.
Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C. Cir.
1995). The United States is the only proper defendant against
such actions. But the United States has retained its sovereign
immunity against assault claims. Therefore, Majano’s sole hope
of success requires that she show Kim’s assault was not within
the scope of her employment, such that the Westfall Act would
not render Kim immune from suit. The issue presented by this
appeal is whether the district court in granting summary
judgment against Majano correctly concluded that no reasonable
jury could find that Kim’s assault was outside the scope of her
employment. We disagree and so reverse the district court.
I.
Many of the facts recounted here are disputed by the
Government, but because we are reviewing a grant of summary
judgment against appellant Majano, we must view the evidence
“as favorably to [her] as reason will permit.” Aka v. Wash.
Hosp. Ctr., 156 F.3d 1284, 1295 (D.C. Cir. 1998) (quoting
Shager v. Upjohn Co., 913 F.2d 398, 401 (7th Cir. 1990)). On
the afternoon of June 17, 2003, Majano, a custodial worker at
the Smithsonian’s Victor Building, arrived at work. She entered
the building through an unmonitored secure door in the parking
structure. As she proceeded through the door, she heard
someone calling to her. She turned and saw Kim, a senior
manager at the Smithsonian whom she did not know,
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approaching the door. Majano had been instructed by her
supervisors not to let persons enter the building if they were
unknown to her unless they provided official identification
showing they were entitled to entry. Without allowing Kim to
pass through the door, Majano asked to see Kim’s identification.
Instead of showing Majano her identification, Kim pushed
Majano out of the doorway and forced her way into the building.
After they were both inside the building, Majano proceeded
down a thirty-foot hallway that led to a bay of elevators. Kim
followed closely, muttering obscenities and calling Majano
“stupid.” Upon reaching the elevators, Kim grabbed the lanyard
around Majano’s neck by the attached access card and
repeatedly yanked it. The force of Kim’s action snapped
Majano’s access card in two. When the elevator arrived,
Majano entered first. Kim followed. Once in the elevator, the
two neither spoke to nor touched each other, and parted without
further incident. In the weeks following the assault, Majano
experienced continual pain and discomfort. A physician
diagnosed a herniated disk in her neck that he attributed to the
trauma from Kim forcefully and repeatedly pulling the lanyard.
The pain in Majano’s neck required surgery and forced her to
quit work at the Smithsonian. She remains disabled and unable
to work.
Majano brought tort claims against Kim in D.C. Superior
Court seeking damages for her injuries. Pursuant to the Westfall
Act, 28 U.S.C. § 2679(d)(2), the Attorney General of the United
States certified that Kim’s conduct was within the scope of her
federal employment, the United States was automatically
substituted as the sole defendant, and the matter was removed to
federal district court. The Government moved to dismiss,
arguing that even if the facts alleged in Majano’s complaint
were true, her claims would fail as a matter of law because no
reasonable jury could find that Kim was acting outside the scope
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of her employment. Majano filed a motion in opposition and
moved for discovery and an evidentiary hearing. The district
court denied the Government’s motion to dismiss and granted
Majano’s motion for discovery. After discovery was completed,
the Government filed a motion for summary judgment, which
the district court granted, concluding as a matter of law that the
Government had established that Kim was acting within the
scope of her employment.
II.
We affirm summary judgment when “there is no genuine
issue as to any material fact and [] the moving party is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c). “Put
another way, a party is entitled to summary judgment only if no
reasonable jury could return a verdict for the non-moving party.”
United States ex rel. Bettis v. Odebrecht Contractors, 393 F.3d
1321, 1325-26 (D.C. Cir. 2005). The non-moving party is
“granted [] the benefit of all reasonable evidentiary inferences
that can be drawn in his favor.” Toney v. Bergland, 645 F.2d
1063, 1066 (D.C. Cir. 1981). We review the district court’s
grant of summary judgment de novo. Fort Sumter Tours, Inc. v.
Babbitt, 202 F.3d 349, 354 (D.C. Cir. 2000).
The narrow question presented in this appeal is whether
there was sufficient evidence to permit a reasonable jury to
conclude that Kim was acting outside the scope of her
employment when she assaulted Majano. At the outset, we note
that scope of employment questions are generally viewed as
questions of fact best resolved by a jury. See Jordan v. Medley,
711 F.2d 211, 215 (D.C. Cir. 1983) (“Before examining the
evidence on this point, we may note that the District of
Columbia courts have considered it to be the general rule that
scope of employment presents a jury question.”); Lyon v. Carey,
533 F.2d 649, 655 (D.C. Cir. 1976) (“It is, then, a question of
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fact for the trier of fact, rather than a question of law for the
court, whether the assault stemmed from purely and solely
personal sources or arose out of the conduct of the employer’s
business . . . .”); Boykin v. District of Columbia, 484 A.2d 560,
562 (D.C. 1984) (“As a general rule, whether an employee is
acting ‘within the scope of employment’ is a question of fact for
the jury.”); Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 31
(D.C. 1979) (“Whether an assault which was the proximate
cause of the injury was within the scope of [] employment . . . as
a general rule, has been held to be a question of fact for the jury
to determine.”)(internal quotation marks and citation omitted).
On the infrequent occasions when courts have resolved scope of
employment questions as a matter of law, either by summary
judgment or directed verdict, it has generally been to hold that
the employee’s action was not within the scope of her
employment and thus to absolve the employer of any liability.
In Jordan, writing for this Court, then-Judge Scalia explained
why it would be unusual to find, as a matter of law, that an
employee was acting within the scope of her employment when
she committed an intentional tort: “A directed verdict against
the employer would be particularly rare in the case of an
intentional tort, which by its nature is willful and thus more
readily suggests personal motivation.” 711 F.2d at 215. The
same principle holds true for summary judgment. Richardson
by Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 828
n.29 (D.C. Cir. 1988) (noting that “the standard for direction of
a verdict mirrors the standard for summary judgment”).
Against this backdrop, we consider whether this is one of
those unusual cases in which a reasonable jury would have to
find the employee’s conduct within the scope of her
employment. We find that it is not. Scope of employment
questions are governed by the law of the place where the
employment relationship exists. Kimbro v. Velten, 30 F.3d
1501, 1506 (D.C. Cir. 1984). In this case that is the District of
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Columbia. We look to the decisions of the Court of Appeals for
the District of Columbia for our guidance on the local law. See
e.g., Lyon, 533 F.2d at 655 (applying case law of the Court of
Appeals of the District of Columbia for a scope of employment
question); Jordan, 711 F.2d at 213-14 (same). “As its
framework for determining whether an employee acted within
the scope of employment, the Court of Appeals for the District
of Columbia looks to the Restatement (Second) of Agency
(1957).” Haddon, 68 F.3d at 1423. Under the Restatement, an
employee’s conduct falls within the scope of employment if: 1)
it is of the kind of conduct he is employed to perform; 2) it
occurs substantially within the authorized time and space limits;
3) it is actuated, at least in part, by a purpose to serve the master;
and 4) if force is intentionally used by the servant against
another, the use of force is not unexpected by the master.
RESTATEMENT (SECOND) OF AGENCY § 228 (1957). If the
employees’ conduct is different in kind from that authorized, far
beyond time or space limits, or too little actuated by a purpose
to serve the master, then the conduct is not within the scope of
employment. Id.
Majano makes two arguments in support of her contention
that Kim’s conduct was outside the scope of her employment.
First, she argues that Kim’s assault in front of the elevators does
not meet the third Restatement factor because it was not
“actuated, at least in part, by a purpose to serve the
[Smithsonian].” Second, she argues that Kim’s use of force was
not expected by the Smithsonian. Because we 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, we do not need to reach this second argument. As to
her first argument, under the law of the District of Columbia,
“the moment the agent turns aside from the business of the
principal and commits an independent trespass, the principal is
not liable. The agent is not then acting within the scope of his
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authority in the business of the principal, but in the furtherance
of his own ends.” Schecter v. Merch. Home Delivery, Inc., 892
A.2d 415, 427 (D.C. 2006) (citation omitted). The key inquiry
is the employee’s intent at the moment the tort occurred.
Our opinion in M.J. Uline v. Cashdan, 171 F.2d 132 (D.C.
Cir. 1949), illustrates this point nicely. Uline involved a hockey
player who, while trying to strike an opposing player with his
stick, mistakenly hit a spectator. The trial court judge instructed
the jury that the player was acting within the scope of his
employment when the tortious conduct occurred. We found
error in the instruction and held that “the [hockey player] may
have been, at the moment he struck the blow, completely
indifferent to the work he was employed to do and actuated
only by anger or hostility toward the man he tried to injure.” Id.
at 134. We concluded that the jury should have been allowed to
determine the player’s intent when he struck the blow. Even
though the hockey player was playing hockey, the conduct for
which he was employed, and was doing so at the time and place
he was employed to play, still we found that a reasonable jury
could yet determine that he was not acting out of a desire to
serve his employer when he struck the blow and was thus not
acting within the scope of his employment.
The nature of the attack also informs the intent analysis. In
Penn Central, the Court of Appeals for the District of Columbia
held that a railroad worker was not acting within the scope of his
employment but was instead motivated by purely personal
reasons when he kicked a taxicab driver on his way from one
worksite to another. The court reached this conclusion in part
because of the “violent and unprovoked” nature of the attack.
Penn Central, 398 A.2d at 32. In Jordan, we held that the
nature of the alleged tort “permits the imputation of a purely
personal motivation,” and quoted language from the Penn
Central court. 711 F.2d at 216. “The outrageous quality of an
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employe’s [sic] act may well be persuasive in considering
whether his motivation was purely personal.” Id. (quoting Penn
Central, 398 A.2d at 31) (internal quotation marks omitted).
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. We think that a
reasonable jury could look at these facts and conclude that when
Kim assaulted Majano, she had turned away from her purpose
to gain entry to the building and instead was acting “solely for
the accomplishment of [her] independent malicious or
mischievous purposes.” Penn Central, 398 A.2d at 32 (internal
quotation marks and citation omitted).
Accordingly, we reverse and remand.
So ordered.