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Dragoman v. Adams

United States District Court, N.D. California

April 5, 2018

LYNN FRANK DRAGOMAN, JR., Plaintiff,
v.
KERRY LEE ADAMS, Defendant.

          ORDER GRANTING MOTION TO DISMISS

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this 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 Granted.

         STATEMENT

         Pro 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.

         In his 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)

         Plaintiff's 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.

         In his 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).

         This order follows full briefing and oral argument.

         ANALYSIS

         Requests 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 Chesney).

         A 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.

         The 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.

         1. ...


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