United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
dispute between two postal service employees, defendant moves
to dismiss pro se plaintiff's claims for lack of
subject-matter jurisdiction and failure to state a claim. For
the reasons stated herein, the motion is
se plaintiff Lynn Frank Dragoman, Jr. and defendant
Kerry Lee Adams both work for the United States Postal
Service - plaintiff as a letter carrier and defendant as the
Postmaster of the Postal Service office in Graton,
California. Following alleged workplace harassment, plaintiff
filed a form CH-100 Request for Civil Harassment Restraining
Order in Sonoma County Superior Court.
request, plaintiff complained that defendant “has been
following me on my mail route weekly and won't
stop.” Plaintiff stated that defendant has been
“harassing me at work for appox [sic] 3 years, ”
and that “there are two active EEOC cases currently
pending.” Additionally, plaintiff complained about wage
issues, stating that defendant refused to pay him, and that
plaintiff was owed “two years back wages for a signed
grievance [defendant] is in non compliance with.”
Plaintiff requested a restraining order to prevent continued
harassment and to require that defendant stay away from
plaintiff, his home, and his workplace. (Dkt. No. 1-1 at 3-7)
request for a temporary restraining order was denied, and a
hearing date was set for February 13. On February 8,
defendant removed the action and the hearing in Sonoma County
Superior Court was vacated. Defendant filed the instant
motion to dismiss on February 15.
opposition, plaintiff stated he was seeking a civil
restraining order out of concern for his safety - rather than
to remedy any alleged employment discrimination - stating
“I am seeking a restraining order for my personal
safety not any kind of penalty/sanction for [defendant's]
appalling behavior as the EEOC will handle that aspect”
(Dkt. No. 6 at 3).
order follows full briefing and oral argument.
for Civil Harassment Restraining Orders filed pursuant to
Section 527.6 of the California Code of Civil Procedure can
be construed as a complaint for the purposes of a motion to
dismiss. Everette v. Milburn, No. 16-cv-5935-MMC,
2016 WL 7049034 at *1 (N.D. Cal. Dec. 5, 2016) (Judge Maxine
genuine dispute appears to exist between the parties.
Plaintiff may be correct that defendant has followed him,
failed to pay back wages, and otherwise created an
undesirable workplace environment. But, even under
plaintiff's version of the facts, defendant acted in his
official capacity as a federal employee. There are,
therefore, limitations on the causes of action that can be
brought against defendant in his individual capacity.
facts alleged suggest claims arising in tort and employment
discrimination. Because defendant is a federal employee
acting in the scope of his employment, to the extent
plaintiff alleges tortious activity, his claims are governed
by the Federal Tort Claims Act. To the extent plaintiff
alleges workplace harassment, his claims are governed by
federal antidiscrimination statutes.