WORKMAN v. BISSESSAR
MEMORANDUM OPINION AND ORDER: Plaintiff's motion for a preliminary injunction, Dkt. 1 -3 at 3-4, 12-13, is hereby DENIED. A decision as to Defendant's motion to dismiss, Dkt. 3 , is hereby DEFERRED. On or before September 5, 2017, Plaintiff is hereby ORDERED to cause process to be served upon Defendant and proof of service to be filed with the Court or to establish good cause for failure to do so. See document for details. Signed by Judge Randolph D. Moss on 8/23/2017. (lcrdm1, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 17-1071 (RDM)
MEMORANDUM OPINION AND ORDER
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.
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,
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
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.
“A preliminary injunction is an extraordinary remedy that should be granted only when
the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v.
Norton, 391 F.3d 251, 258 (D.C. Cir. 2004). To prevail, a party seeking a preliminary injunction
bears the burden of showing (1) “that [s]he is likely to succeed on the merits,” (2) “that [s]he is
likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of
equities tips in h[er] favor,” and (4) “that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Although the party attempting to
establish these four factors may rely on “evidence that is less complete than in a trial on the
merits,” Natural Res. Def. Council v. Pena, 147 F.3d 1012, 1023 (D.C. Cir. 1998) (quoting Univ.
of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)), she nevertheless bears the burden of producing
credible evidence sufficient to demonstrate her entitlement to injunctive relief, see R.I.L-R v.
Johnson, 80 F. Supp. 3d 164, 173 (D.D.C. 2015).
“[T]he first and most important” of these four factors is whether the movant “ha[s]
established a likelihood of success on the merits.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C.
Cir. 2014). In this case, Workman—despite the Court’s repeated appeals—has failed to offer
any evidence showing that she is likely to prevail in her effort to obtain a stay-away order against
Bissessar. When the Court offered Workman the opportunity to take the stand and to provide
testimony under oath, she declined. And, when the Court informed Workman at the hearing that,
if she had “any evidence [she] want[ed] to offer,” she could submit it to the Court; subsequently
set a schedule for Workman to submit any evidence she wanted the Court to consider and
cautioned her about the consequences of failing to do so, Dkt. 7; and then, finally, ordered that
she show cause why the Court should not decide her motion without the benefit of any
substantive submission from her, Dkt. 9, Workman failed to respond. Because Workman has
failed to offer any evidence in support of her motion, the Court can only conclude that she has
failed to make the “‘clear showing’ of likelihood of success” on the merits that is necessary “for
a preliminary injunction to be granted.” Sierra Club v. U.S. Dep’t of Energy, 825 F. Supp. 2d
142, 150 (D.D.C. 2011) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
Workman’s failure to offer any evidence in support of her claims leaves a second,
essential element of the preliminary injunction standard unmet as well: Without any evidence to
support her claims, she cannot carry her burden of showing that “[t]he injury [she] complain[s]
of is of such imminence that there is a clear and present need for equitable relief to prevent
irreparable harm.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.
Cir. 2006) (quoting Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam))
(emphasis and first alteration in original). During the TRO hearing, the Court specifically asked
“whether [she] ha[d] any evidence of an actual threat to [her] personal safety” that might warrant
the immediate issuance of a stay-away order, to which Workman responded, “I don’t have any
evidence.” The evidence that the Court does have before it includes a declaration from Jacob
Bradd, the assistant building manager for the Renwick Gallery, attesting that, after an extensive
investigation, he “found no evidence of physical contact” between Workman and Bissessar and
that he found no “evidence to support . . . Workman’s allegations of harassment.” Dkt. 6-1 at 2
(Bradd Decl. ¶¶ 7–8). Because Workman has failed to offer any evidence disputing Bradd’s
declaration, the Court has no basis to find that Workman was subject to a physical assault or to
any actionable harassment.
Although Workman’s “fail[ure] to meet [her] burden of showing a likelihood of success
on the merits . . . alone may be sufficient grounds for denying a preliminary injunction,” Sierra
Club, 825 F. Supp. 2d at 153, her failure to show that she is likely to suffer irreparable injury in
the absence of a preliminary injunction removes all doubt that she is not entitled to preliminary
relief, see Chaplaincy of Full Gospel Churches, 454 F.3d at 297 (explaining that a “movant’s
failure to show any irreparable harm” is, alone, “grounds for refusing to issue a preliminary
injunction”). Accordingly, Workman’s motion for a preliminary injunction will be denied.
Motion to Dismiss
In addition to opposing Workman’s motion for a preliminary injunction, Bissessar also
moves to dismiss Workman’s complaint on multiple grounds, including lack of subject matter
jurisdiction, failure of service of process, and failure to state a claim. Dkt. 3. The Court
concludes, however, that it would be premature to rule on that motion until after the time
afforded to Workman to effect service on Bissessar has expired. See id. at 18–19 (raising failure
to properly effect service as a reason to dismiss Workman’s complaint under Federal Rule of
Civil Procedure 12(b)(5)).
Workman filed her complaint in D.C. Superior Court on May 18, 2017. Dkt. 1-3 at 5.
When Bissessar removed the case to this Court on June 5, 2017, she apparently had not yet
served the complaint in compliance with the rules governing cases brought in the D.C. Superior
Court. See D.C. Super. Ct. R. Civ. P. 4(i) (requiring service on the U.S. Attorney for the District
of Columbia, the U.S. Attorney General, and the officer or employee in the designated manners);
see also Dkt. 3 at 19. That, however, does not end matters—indeed, if it did, it would provide an
easy way for defendants to prevail in removable cases by simply removing an action before the
plaintiff could effect service. Rather, under 28 U.S.C. § 1448, the plaintiff in a removed action
who has not served or perfected process may either “complete” service under state law or may
obtain “new process” and may then effect service “in the same manner as in cases originally filed
in” federal court. See Queen v. Schmidt, 10-cv-2017, 2015 WL 5175712, at *11 (D.D.C. Sept. 3,
2015) (describing the two distinct procedures for service in removed cases). Federal Rule of
Civil Procedure 81(c)(1) adds that, once removed, a civil action is subject to the Federal Rules of
Civil Procedure, including Rule 4.
Although the D.C. Circuit has yet to decide the question, a leading commentator and a
number of courts of appeals agree that, when considered together, § 1448 and Rule 81(c)(1)
mean that the time to effect service specified in Federal Rule of Civil Procedure 4(m) “starts to
run upon removal to the federal district court, not the date the action was originated in state
court.” 4B Charles Alan Wright, Arthur R. Miller & Adam Steinman, Federal Practice and
Procedure § 1137, p. 283 (2015); see also Cardenas v. City of Chicago, 646 F.3d 1001, 1004
(7th Cir. 2011) (The “same . . . period” provided by Rule 4(m) “applies where suits are removed
to federal court from state court, except that the period commences upon the date of removal.”);
Rice v. Alpha Sec., Inc., 556 Fed. App’x 257, 260–62 (4th Cir. 2014) (per curiam) (same);
Wallace v. Microsoft Corp., 596 F.3d 703, 706–07 (10th Cir. 2010) (same).1 And, even more
There is a split in authority on the question whether it is necessary for the plaintiff in such an
action to obtain new process from the district court or whether it may complete service using
process obtained from the state court. Compare Beecher v. Wallace, 381 F.2d 372, 373 (9th Cir
1967) (holding that, “where the defendant has never been put on notice of the state court
proceeding prior to removal[,] . . . the federal court cannot ‘complete’ the state process by
permitting it to be served after removal; rather, the federal court must issue new process pursuant
to Rule 4 of the Federal Rules of Civil Procedure”), with Minter v. Showcase Sys., Inc., 641 F.
importantly for present purposes, Bissessar concedes that “[w]here service is either not made or
defective prior to a removal, a plaintiff must effectuate proper service within 90 days of the
removal.” Dkt. 3 at 19.
Applying that rule, Workman has until September 5, 2017, to effect service. Although
that date has not yet passed, the Court directs Workman’s attention to Federal Rule of Civil
Procedure 4(m), which provides in relevant part:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). “Unless service is waived, proof of service must be made to the court.”
Fed. R. Civ. P. 4(l)(1). Here, Bissessar has filed a motion to dismiss for insufficient service of
process, and that motion remains pending. The Court, moreover, hereby provides notice to
Workman that the Court will dismiss her action without prejudice unless she effects service and
files proof of service with the Court or shows cause for her failure to do so on or before
September 5, 2017.
Supp. 2d 597, 599–602 (S.D. Miss. 2009) (concluding that “the completion of state service of
process . . . following removal to [federal] court” constitutes “proper service of process pursuant
to 28 U.S.C. § 1448” and collecting cases on both sides of the split of authority). As this Court
sees it, the more substantial question is whether the clock for effecting service restarts upon
removal in cases in which the plaintiff seeks to “complete” service under state court service
rules, or only in cases in which the plaintiff obtains “new process” from the federal district court.
See 28 U.S.C. § 1448. To avoid any possible difficulty posed by this issue, Workman is free to
obtain new process from this Court.
For the reasons explained above, Workman’s motion for a preliminary injunction, Dkt. 13 at 3–4, 12–13, is hereby DENIED, and a decision on Bissessar’s motion to dismiss, Dkt. 3, is
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: August 23, 2017
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