Reed v. Department of the Navy , 899 F. Supp. 2d 25 ( 2012 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    )
    TIMOTHY M. REED,                                      )
    )
    Plaintiff,                             )
    )
    v.                                     )        Civil Action No. 10-1160 (ESH)
    )
    DEPARTMENT OF THE NAVY,                               )
    )
    Defendant.                             )
    )
    MEMORANDUM OPINION
    Plaintiff Timothy Reed has sued the Department of the Navy, seeking monetary damages
    and injunctive relief for the allegedly improper disclosure of confidential records pertaining to
    plaintiff under the Privacy Act of 1974 (“Privacy Act”), 5 U.S.C. § 552a et seq. Defendant now
    moves the Court to enter summary judgment in its favor. For the reasons set forth below,
    defendant’s motion is denied.
    FACTUAL BACKGROUND
    Plaintiff Timothy Reed was enlisted in the United States Navy from November 1990
    through January 1998, when he was honorably discharged. (Defendant’s Statement of Material
    Facts (“Def. Facts”) ¶ 1.) From March 1998 through May 18, 2009, he served in the Navy
    Reserve. (Id.) Plaintiff was simultaneously employed as a police officer by the Charleston
    Police Department from the spring of 2000 through May 2009. (Id. ¶ 2.)
    In January 2009, plaintiff was mobilized to the Expeditionary Combat Readiness Center
    (“ECRC”) in anticipation of being deployed to Iraq. (Id. ¶ 3.) While in specialized training at
    Fort Lewis, Washington, plaintiff was alleged to have engaged in various acts of misconduct.
    (Id. ¶ 4.) Defendant claimed that he pointed an M16 rifle at two other trainees while ordering
    1
    them to the ground; pointed a knife at another trainee and threatened to cut him; disobeyed an
    order; made a derogatory statement about a female officer; and made inappropriate comments
    about using force against Iraqis. (Id.) The Navy commenced disciplinary proceedings,
    conducting a Disciplinary Review Board (“DRB”) hearing on January 30, 2009, during which
    plaintiff indicated that he was a member of the Charleston Police Department (“CPD”). (Id. ¶ 6.)
    Following the hearing, Command Master Chief David Carter contacted the CPD to confirm
    plaintiff’s civilian employment. (Id. ¶ 7.) Over the course of three phone calls, CMC Carter
    made certain disclosures to the CPD regarding the pending allegations against plaintiff. (Id.)
    Sometime in January or February, plaintiff contacted Lieutenant Kevin Boyd, his team
    commander at the CPD, and mentioned, without providing specific details, that there were
    “issues in [his] training.” (Deposition of Lt. Kevin Boyd (“Boyd Dep.”), Ex. E to Defendant’s
    Motion for Summary Judgment (“Def. Mot.”), 4:13-17.) Boyd notified Captain Tillman, his
    supervisor, about the call. (Id.) Plaintiff also called Mark Bourdon, an attorney for the CPD, and
    described the allegations again in vague terms. (Def. Facts ¶ 8.) CPD Chief Mullen decided not
    to take any action against plaintiff until the Navy’s investigation was completed. (Id. ¶ 9.)
    On March 12, 2009, plaintiff was found guilty at a “Captain’s Mast” proceeding of
    having violated three provisions of the Uniform Code of Military Justice: disobeying a lawful
    order (UCMJ Art. 92), provoking speeches or gestures (UCMJ Art. 117), and assault (UCMJ Art.
    128). (Id. ¶ 11.) Captain McKenzie, Commanding Officer of the ECRC, imposed non-judicial
    punishment (“NJP”) on plaintiff, reducing his rank from First Class Petty Officer (E6) to Second
    Class Petty Officer (E5). (Id.) On April 13, 2009, plaintiff was demobilized (id.), and on May
    18, 2009, he was honorably discharged from the USNR. (Complaint (“Compl.”) ¶ 23.)
    2
    On April 13, 2009, plaintiff indicated to the CPD that he intended to return to work as a
    police officer. (Id. ¶ 12.) On the same date, Mark Bourdon contacted Navy Lieutenant
    Commander (“LCDR”) Aimee Cooper to obtain information about the circumstances of Reed’s
    separation from the Navy. (Id. ¶ 13.) Cooper informed Bourdon about the details of the
    allegations against plaintiff, the fact that he had undergone a psychological exam, and the
    disciplinary actions that the Navy had taken against him. (Plaintiff’s Statement of Genuine
    Issues (“Pl. Facts”) ¶ 13.)
    On April 15, 2009, Bourdon asked LCDR Cooper to treat his email as a Freedom of
    Information Act (“FOIA”) request. (Def. Facts ¶ 13.) On April 17, 2009, LCDR Cooper sent by
    email to Bourdon records of the Navy’s investigation and the results of plaintiff’s NJP. (Pl.
    Facts ¶ 13.) Cooper stated in an email to Bourdon that she believed what she had released
    “should be [ok],” while conceding that her supervisors did “not think so.” (Ex. F to Def. Mot.)
    On April 24, 2009, plaintiff was reinstated to his former position and rank at the CPD.
    (Def. Facts ¶ 15.) On the same day, CPD Lieutenant Anita Craven began an internal affairs
    investigation into plaintiff’s alleged misconduct at the Navy, which CPD considered relevant to
    plaintiff’s “fitness for duty.” (Id. ¶ 13.) Plaintiff was placed on administrative leave with pay at
    that time. (Ex. 18 to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (“Pl.
    Opp.”)) Lt. Craven interviewed plaintiff on April 24, 2009 and May 1, 2009. (Def. Facts ¶ 17.)
    Plaintiff told Lt. Craven that the weapons charges had been dropped. (Id. ¶ 18.) Upon Lt.
    Craven’s request, plaintiff provided documents reflecting the NJP punishment and his demotion
    in rank. (Id.) He did not provide documentation regarding the proceedings and findings of guilt.
    (Id.) Plaintiff declined to sign a waiver to allow Lt. Craven to obtain the NJP records directly
    3
    from the Navy. (Id. ¶ 18.) On May 1, 2009, plaintiff was put on administrative leave without
    pay. (Ex. 18 to Pl. Opp.)
    On May 8, 2009, plaintiff submitted a letter of resignation to Lt. Boyd, which was
    accepted by Chief Mullen on May 11, 2009. (Def. Facts ¶ 20.) On May 21, 2009, the CPD
    completed its investigation with a finding that plaintiff had been untruthful during the course of
    the investigation and had acted to hinder the investigation. (Id.) No action was taken against
    plaintiff since he had already resigned. (Id.)
    Plaintiff filed suit against the Navy, alleging violations of the Privacy Act, 5 U.S.C. §
    552a et seq. He also sued the City of Charleston in federal court in South Carolina, alleging
    violations of the Uniformed Services Employment and Reemployment Rights Act of 1994
    (“USERRA”), 
    38 U.S.C. § 4301
     et seq. On June 8, 2012, on the eve of trial in the USERRA
    case, plaintiff stipulated to a voluntary dismissal with prejudice. (Id. ¶ 19).
    STANDARD OF REVIEW
    I.     SUMMARY JUDGMENT
    “Summary judgment is proper if there is no genuine issue as to any material fact and the
    moving party is entitled to judgment as a matter of law.” McKinley v. Bd. of Governors of Fed.
    Reserve Sys., 
    647 F.3d 331
    , 335 (D.C. Cir. 2011); see Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 247–48 (1986). A dispute is “genuine” and precludes summary judgment only “if the
    evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 
    Id. at 248
    .
    When considering a motion for summary judgment, “the court must draw all reasonable
    inferences in favor of the nonmoving party, and it may not make credibility determinations or
    weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 150 (2000).
    4
    Still, when the moving party has carried its initial burden of demonstrating the absence of a
    genuine issue of material fact, the nonmoving party “must do more than simply show that there
    is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
    Radio Corp., 
    475 U.S. 574
    , 586 (1986). It may not rely on “mere allegations or denials,” but
    rather “must set forth specific facts showing that there is a genuine issue for trial.” Anderson,
    
    477 U.S. at 248
     (internal quotation marks and citation omitted). “[W]holly conclusory
    statements for which no supporting evidence is offered” will not suffice. Carter v. Greenspan,
    
    304 F. Supp. 2d 13
    , 21 (D.D.C. 2004) (citing Greene v. Dalton, 
    164 F.3d 671
    , 674–75 (D.C. Cir.
    1999)). A moving party is entitled to summary judgment if the nonmoving party “fails to make a
    showing sufficient to establish the existence of an element essential to that party’s case, and on
    which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 
    477 U.S. 317
    ,
    322 (1986).
    II.    PRIVACY ACT
    When it passed the Privacy Act, Congress declared that “in order to protect the privacy of
    individuals identified in information systems maintained by federal agencies, it is necessary and
    proper for the Congress to regulate the collection, maintenance, use, and dissemination of
    information by such agencies.” Privacy Act of 1974, Pub. L. No. 93-579, § 2(a)(5), 
    88 Stat. 1896
    . The Act provides agencies with “detailed instructions for managing their records and
    provides for various sorts of civil relief to individuals aggrieved by failures on the Government's
    part to comply with the requirements.” Doe v. Chao, 
    540 U.S. 614
    , 618 (2004). These detailed
    instructions and provisions for relief “protect[] individuals from injury that can result from the
    bureaucratic habit of collecting and retaining information, however dated, prejudicial, or false.”
    Dickson v. Office of Pers. Mgmt., 
    828 F.2d 32
    , 38 (D.C. Cir. 1987). “Put simply, the Act
    5
    ‘safeguards the public from unwarranted collection, maintenance, use and dissemination of
    personal information contained in agency records . . . by allowing an individual to . . . ensur[e]
    that his records are accurate and properly used.’” McCready v. Nicholson, 
    465 F.3d 1
    , 7-8 (D.C.
    Cir. 2006) (quoting Bartel v. Fed. Aviation Admin., 
    725 F.2d 1403
    , 1407 (D.C. Cir. 1984)).
    Section 552a (g)(1)(D) of the Act creates a cause of action for any “adverse effect” from
    a “failure [by the agency] to hew to the terms of the Act.” Doe v. Chao, 
    540 U.S. at
    619 (citing 5
    U.S.C. § 552a(g)(1)(D)). In actions brought under (g)(1)(D), the government will only be liable
    for “actual damages sustained by the individual as a result of the refusal or failure.” 5 U.S.C. §
    552a(g)(4). Privacy Act claims for monetary damages based on improper disclosure, which arise
    under “§ 552a(g)(1)(D), have four elements: “1) the disclosed information is a ‘record’ contained
    within a ‘system of records’; 2) the agency improperly disclosed the information; 3) the
    disclosure was willful or intentional; and 4) the disclosure adversely affected the plaintiff.”
    Logan v. Dep’t of Veterans Affairs, 
    357 F. Supp. 2d 149
    , 154 (D.D.C. 2004). “The burden of
    proof lies with the plaintiff.” Cacho v. Chertoff, 
    2006 WL 3422548
     (D.D.C. 2006), at *4 (citing
    Reuber v. United States, 
    829 F.2d 133
    , 141 (D.C. Cir. 1987)).
    ANALYSIS
    Plaintiff challenges two sets of disclosures in the instant suit: those made by CMC Carter
    during three phone calls with various CPD officers, and those made by LCDR Cooper during
    phone calls and in email exchanges with CPD Attorney Mark Bourdon. Plaintiff alleges that
    defendant violated the Privacy Act by willfully and intentionally disclosing information from the
    Navy’s investigation of and disciplinary proceedings against plaintiff, which led to his
    constructive discharge from the CPD and difficulty in obtaining another law enforcement
    position.
    6
    For the purposes of this motion, defendant does not contest that disclosures were made by
    both Carter and Cooper. However, defendant contends that it is entitled to judgment as a matter
    of law because the undisputed facts reveal that Carter’s disclosures were not derived from a
    “record within a record;” that Carter and Cooper’s disclosures were permitted under the
    Department of Defense (“DoD”) blanket “routine use” exceptions to the Privacy Act and the
    Navy’s System of Records Notice (“SORN”), N01070-3; that any disclosures that may have
    fallen outside of the exceptions were not willful or intentional; and that the disclosures did not
    cause the adverse effect of constructive discharge, or that plaintiff is precluded from arguing that
    he was constructively discharged based on his stipulated voluntary dismissal of the USERRA
    case against the City of Charleston. While many of the facts are settled at this point, certain
    material facts remain in dispute, and as a result, the defendant’s motion will be denied.
    I.     RECORD WITHIN A SYSTEM OF RECORDS
    By its terms, the Privacy Act seeks to regulate the release of “any record which is
    contained in a system of records[.]” 
    5 U.S.C. § 552
    (b). Plaintiff alleges that defendant
    improperly released information derived from the Navy’s records of investigation and discipline.
    (Compl. ¶¶ 24-27). Defendant claims, however, that CMC Carter’s disclosures were based on
    his “independent knowledge,” rather than review of an agency record, and thus are not covered
    by the Privacy Act (Defendant’s Memorandum of Points (“Def. Mem.”), at 7, referring to Bartel,
    
    725 F.2d at 1411
    .) Plaintiff disputes this, highlighting that “[a]ll of the disclosures CMC Carter
    made to CPD occurred after CMC Carter had conducted the DRB and signed off on the
    memorandum to Reed’s Commanding Officer.” (Pl. Opp. at 12.) Since the record is not
    perfectly clear on this point, and one must construe the evidence in the light most favorable to
    7
    the plaintiff for the purposes of this motion, the Court cannot conclude that Carter’s disclosures
    were not derived from “a record within a system of records,” as defined by the Privacy Act.
    II.    ROUTINE USE
    “[T]he Privacy Act generally prohibits government agencies from disclosing personnel
    files” without the consent of the individual. Bigelow v. Dep’t of Defense, 
    217 F.3d 875
    , 876
    (D.C. Cir. 2000). However, an agency may properly disclose a protected record if one of a
    number of exemptions applies. 5 U.S.C. § 552a(b) (listing twelve exemptions). If plaintiff
    cannot establish that disclosure was improper, he cannot succeed under the Privacy Act as a
    matter of law.
    The Privacy Act allows disclosure of records “for a routine use as defined in subsection
    (a)(7) . . . and described under subsection (e)(4)(D) . . . .” Section 552a(a)(7) defines a “routine
    use” as use “for a purpose which is compatible with the purpose for which [the record] was
    collected.” Section 552a(e)(4)(D) requires agencies to publish “each routine use of the records
    contained in the system, including the categories of users and the purposes of such use” in the
    Federal Register. Thus, merely publishing the routine use in the Federal Register will not satisfy
    the Privacy Act. The use must also be “compatible” with the purpose for which the record was
    collected. See U.S. Postal Serv. v. Nat’l Ass’n of Letter Carriers, 
    9 F.3d 138
    , 144-46 (D.C. Cir.
    1993); Doe v. Stephens, 
    851 F.2d 1457
    , 1466-67 (D.C. Cir. 1988) (holding that disclosing
    medical records pursuant to a grand jury subpoena was an invalid “routine use” because it would
    not be for a compatible purpose).
    Defendant argues that the disclosures were compatible with the purposes for which the
    records were collected. It argues that the DRB records were collected to assess plaintiff’s future
    status in the Navy Reserve and Carter disclosed information from those records “to collect more
    8
    potentially-relevant information” that would inform the same assessment. (Def. Mem. at 8.) The
    NJP records, according to defendant, were collected to memorialize the proceedings and to
    ascertain plaintiff’s “fitness for duty” as a Navy sailor, and in turn, Cooper disclosed the records
    to assist the CPD in ascertaining plaintiff’s “fitness for duty” as a CPD police officer. (Def.
    Mem. at 9.) Defendant posits that in both cases, the reasons for the disclosures were compatible
    with the reasons the records were collected.
    Defendant argues further that the disclosures were authorized by the DoD’s “law
    enforcement” and “requesting information” blanket routine use exemptions to the Privacy Act’s
    prohibitions on disclosure. (Def. Mem. at 10-14.) The “requesting information” exception
    provides that a record may be “disclosed as a routine use to a federal, state, or local agency
    maintaining civil, criminal, or other relevant enforcement information…if necessary to obtain
    information relevant to a Component decision concerning the hiring or retention of an
    employee[.]” (Def. Mem. at 10 (quoting 
    32 C.F.R. § 701.112
    ).) The “law enforcement”
    exception states that “where a record ‘indicates a violation or potential violation of law, whether
    civil, criminal, or regulatory in nature…the relevant records in the system of records may be
    referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign,
    charged with the responsibility of investigating or prosecuting such [a] violation.’” (Def. Mem.
    at 12 (quoting 
    32 C.F.R. § 701.112
    ).) Defendant argues that the disclosures were also proper
    pursuant to the Navy System of Records Notice (“SORN”) N01070-3, which authorizes
    disclosures to “law enforcement” agencies “in connection with litigation, law enforcement, or
    other matters under the jurisdiction of such agencies.” (Def. Mem. at 11-12 (quoting 75 FR
    19627).) More specifically, defendant relies on the “requesting information” exception and the
    9
    SORN to justify CMC Carter’s disclosures, and on the “law enforcement” exception and the
    SORN to justify LCDR Cooper’s disclosures.
    There is little question that defendant has met the compatibility prong for LCDR
    Cooper’s disclosures based on undisputed facts in the record. Plaintiff’s argument that his
    “fitness for duty as a member of the military entails entirely different and unique considerations
    than those which are relevant to [his] fitness for duty as a civilian police officer” (Pl. Opp. at 16)
    is unavailing. There might, in a theoretical case, be considerations that would be unique to the
    Navy, however, the allegations that were investigated in this case – in particular, the use of
    abusive language and the threatened use of weapons – are equally relevant to whether an
    individual is fit to serve as a Naval officer or as a police officer. However, because of disputed
    facts regarding the scope of CMC Carter’s disclosures, as discussed further below, the
    compatibility prong for those disclosures cannot be resolved on this motion.
    Moreover, construing the facts in the light most favorable to plaintiff, the Court cannot
    grant defendant judgment as a matter of law on the question of whether either set of disclosures
    was authorized under the DoD’s routine use exceptions or the SORN because there are factual
    issues that cannot be resolved without making credibility determinations.
    First, the reasons for and extent of Carter’s disclosures are in dispute. Carter has
    maintained that his only reason for calling the CPD was to verify that plaintiff was in fact
    employed by CPD as a police officer (Carter Declaration (“Carter Decl.”), Ex. 3 to Pl. Opp. (“I
    was only attempting to verify that MA2 Reed was employed as a law enforcement officer.”);
    Carter Deposition (“Carter Dep.”), Ex. D to Def. Mot., 41:18-45:9, 62:1-63:20), and he has
    maintained that he did not and would not have mentioned any specifics about the allegations or
    about a mental health exam (Carter Dep. 66:1-14). Cooper’s statements support Carter’s account
    10
    (Cooper Decl., Ex. 2 to Pl. Opp. (“After confirming that MA2 Reed was a Charleston Police
    Officer, Master Chief Carter did not ask any further questions….Master Chief Carter did not
    discuss any specifics of the allegations with the Charleston Police Department.”).) Yet, the
    testimony of several CPD witnesses, including Bourdon, Sgt. Robert Gamard, and Lt. Boyd,
    suggest that Carter did share the nature of the charges against plaintiff, including “something
    about pointing a weapon and a derogatory statement or slur that was made during training.”
    (Boyd Dep., Ex. 1 to Pl. Opp., 12:3-7; see also Deposition of Sgt. Robert E. Gamard (“Gamard
    Dep.”), Ex. G to Def. Mot., 10:13-19 (“he told me that Timothy was involved…in an incident
    that he pointed a firearm at some fellow trainees, and there were some allegations of some ethnic
    and racial slurs as well.”). And, notwithstanding Carter’s testimony to the contrary, defendant
    argues that Carter’s call to the CPD was intended to ascertain not only plaintiff’s employment
    but also whether plaintiff had any prior disciplinary history with CPD.
    Similarly, there are significant discrepancies between the deposition testimony of LCDR
    Cooper, her previous sworn affidavit, the deposition testimony of other witnesses, and the
    preserved email exchange between Cooper and Bourdon. There are unanswered questions about
    what precisely she disclosed to Bourdon and when she made those disclosures. Additionally,
    there is some dispute as to whether her supervisors authorized, or would have authorized the
    disclosures, and whether she was authorized to make the disclosures without approval from her
    supervisors. (Pl. Facts ¶13 (“LCDR Cooper responded four minutes later stating that her
    Immediate Superior in Command (ISIC), the denial authority for FOIA and PA wanted her to
    deny release”; “Mr. Bourdon asked if ‘the stuff u sent ok?’….LCDR Cooper responded that it
    ‘should be’ but her command (i.e. ‘higher ech[elon]’) did not think so.” ) but see Bustamente
    Decl., Ex. K to Def. Mot. (identifying himself as the “Staff Judge Advocate for NECC, which is
    11
    the [ISIC] to [ECRC]” and stating “I am in agreement that any information that may have been
    disclosed by [Carter] or [Cooper] about Mr. Reed to the CPD would have been properly
    disclosed under the applicable [SORN] and the [DoD] blanket routine use exemptions.”)
    With these genuine issues of material fact in dispute, judgment as a matter of law is
    denied to defendant as to the question of whether Carter and Cooper’s disclosures were exempt
    from the Privacy Act.
    III.   WILLFUL OR INTENTIONAL DISCLOSURE
    “[P]roof of intent or willfulness is a necessary element of [plaintiff’s] claims, and failure
    to provide supporting evidence would lead to summary judgment in favor of the [government].”
    Sussman v. U.S. Marshals Serv., 
    494 F.3d 1106
    , 1122 (D.C. Cir. 2007). In this Circuit,
    intentional or willful means “so ‘patently egregious and unlawful’ that anyone undertaking the
    conduct should have known it ‘unlawful.’” Laningham v. United States Navy, 
    813 F.2d 1236
    ,
    1242 (D.C. Cir. 1987) (quoting Wisdom v. Dep’t of Hous. & Urban Dev., 
    713 F.2d 422
    , 425 (8th
    Cir. 1983)); see also Tijerina v. Walters, 
    821 F.2d 789
    , 799 (D.C. Cir. 1987) (“intentional or
    willful” conduct is “somewhat greater than gross negligence,” demonstrating a “flagrant
    disregard” for rights the Act protects) (internal quotation omitted).
    Defendant argues that CMC Carter’s disclosures were not intentional or willful because
    he asked LCDR Cooper to be in the room when he called the CPD, precisely so that he would
    not inadvertently violate the Privacy Act. (Def. Mem. at 15.) While this argument has some
    appeal, the discrepancy between what Cooper and Carter recall that Carter said during the call,
    12
    and what CPD Lt. Boyd and Attorney Bourdon recall being said renders it impossible to decide
    this issue on summary judgment. 1
    As for LCDR Cooper’s disclosures to Bourdon, there are even more ambiguities in the
    record that preclude a finding for defendant as a matter of law. On the one hand, Cooper
    discussed the possible applicability of the law enforcement exemption and perhaps the SORN
    with Bourdon. (Def. Facts ¶ 13, but see Pl. Facts ¶ 13.) On the other hand, Cooper conceded
    that her superiors did not believe that the information should be released, and it is unclear
    whether she had the ultimate authority to authorize the release without their approval (Pl. Facts
    ¶13). Additionally, it appears that she made oral disclosures prior to receiving a formal request
    from Bourdon, in violation of the SORN and DoD blanket regulations (Pl. Opp. at 9 (citing
    SECNAVINST 5211.5E para. 24(b) (“Navy regulation clearly provides that routine-use
    disclosures require a specific routine-use request”)); prior to researching the case law on the
    Privacy Act (id. at 18, 20); and prior to consulting with her supervisors. Those disclosures,
    according to Bourdon, were fairly specific about the allegations and included the information
    that plaintiff had undergone a psychological exam. (Pl. Facts at 8 (citing Deposition of Mark
    Bourdon (“Bourdon Dep.”), 20:7-8).) For all these reasons, defendant is not entitled to judgment
    as a matter of law on this issue, since credibility assessments are involved.
    IV.    ADVERSE EFFECT
    “Plaintiff is entitled to civil remedies under § 552a(b) only if the violation had an
    ‘adverse effect’ on him.” Gamble v. Dep’t of the Army, 
    567 F. Supp. 2d 150
    , 155 (D.D.C. 2008).
    The plaintiff must allege “actual damages” connected to the adverse effect to “qualify” under the
    Act. Doe v. Chao, 
    540 U.S. at 620-27
    ; Mandel v. U.S. Office of Pers. Mgmt., 
    244 F. Supp. 2d 1
    Bourdon was apparently not present during the phone call but recalls that Capt. Tillman and Lt.
    Boyd afterwards recounted being informed about the allegation that plaintiff pointed a weapon.
    (Bourdon Dep., 9:7-10:25.)
    13
    146, 153 (E.D.N.Y. 2003) (holding that plaintiff must establish a “causal connection” between
    agency violation and adverse effect). Thus, plaintiff “must establish not only that he was
    ‘adversely affected’ by the improper disclosure, but also that he suffered ‘some harm for which
    damages can reasonably be assessed.’” Mulhern v. Gates, 
    525 F. Supp. 2d 174
    , 181-82 (D.D.C.
    2007) (quoting Doe v. Chao, 
    540 U.S. at 621
    ).
    Defendant makes three arguments for why it is entitled to summary judgment on the basis
    of the adverse effect prong. First, it argues that plaintiff resigned from the CPD and was not
    constructively discharged. (Def. Mot. at 18-21.) Second, it argues that even if he were
    constructively discharged, there is no causal link between the discharge and the disclosures
    because CPD would have initiated an investigation based on plaintiff’s own phone calls to the
    CPD and the fact that he was returning unexpectedly early from his Navy mobilization. (Def.
    Mot. at 22-24.) Third, defendant argues that plaintiff is precluded from arguing that he was
    constructively discharged because he stipulated to voluntary dismissal of his USERRA case
    against the City of Charleston. (Def. Mot. at 24-27.) Each of these arguments is addressed
    below.
    A.     Issue Preclusion
    As a preliminary matter, plaintiff is not precluded from arguing constructive discharge.
    In this Circuit, the standard for issue preclusion requires that “(1) the issue is actually litigated
    and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity
    for litigation by the parties or their privies; (4) under circumstances where the determination was
    essential to the judgment, and not merely dictum.” Wash. Med. Ctr. v. Holle, 
    573 A.2d 1269
    ,
    1283 (D.C. Cir. 1990). It is black letter law that “[i]n the case of a judgment entered by
    confession, consent, or default, none of the issues is actually litigated.” Restatement (Second) of
    14
    Judgments, § 27 cmt. e (1982). Other circuits, following the Supreme Court’s decision in
    Lawlor v. National Screen Serv. Corp., 
    349 U.S. 322
    , 327 (1955), have held that collateral
    estoppel does not apply in cases of voluntary dismissal with prejudice where the court makes no
    findings. See, e.g., Amadeo v. Principal Mut. Life Ins. Co., 
    290 F.3d 1152
    , 1159 (9th Cir. 2002),
    Pelletier v. Zweifel, 
    921 F.2d 1465
    , 1501 (11th Cir. 1991) (abrogated on unrelated grounds by
    Bridge v. Phoenix Bond & Indem. Co., 
    553 U.S. 639
     (2008)), Engelhardt v. Bell & Howell Co.,
    
    327 F.2d 30
    , 36 n.1 (8th Cir. 1964). In this instance, the issue of constructive discharge was not
    “actually litigated” in that the court in South Carolina did not make any actual findings on the
    issue. Therefore, plaintiff may continue to pursue his constructive discharge claim.
    B.      Constructive Discharge
    Although a resignation is presumed to be voluntary, “[i]n certain cases, the doctrine of
    constructive discharge enables an employee to overcome the presumption of voluntariness and
    demonstrate she suffered an adverse employment action by showing the resignation or retirement
    was, in fact, not voluntary.” Aliotta v. Bair, 
    614 F.3d 556
    , 566 (D.C. Cir. 2010). In this Circuit,
    “a ‘finding of constructive discharge depends on whether the employer deliberately made
    working conditions intolerable and drove the employee’ out.” Mungin v. Katten Muchin & Zavis,
    
    116 F.3d 1549
    , 1558 (D.C. Cir. 1997) (quoting Clark v. Marsh, 
    665 F.2d 1168
    , 1173 (D.C. Cir.
    1981)). “The standard, moreover, is an objective one; that is, ‘whether a reasonable employee
    would have concluded that the conditions made remaining in the job unbearable’ and thus would
    have felt compelled to resign.” Kalinoski v. Gutierrez, 
    435 F.Supp.2d 55
    , 78 (D.D.C. 2006)
    (quoting Lindale v. Tokheim Corp., 
    145 F.3d 953
    , 955 (7th Cir. 1998)). “[A]bsent some
    indication that the employer was trying to drive the employee from the workplace entirely or that
    15
    the employee ‘quit just ahead of the fall of the axe,’ the law will not permit a resignation to be
    transformed into a discharge.” 
    Id.
    In this case, plaintiff alleges that once he was put on administrative leave without pay, he
    “believed it was an inevitability he would be fired because, based on his experience with CPD,
    ‘nobody goes on administrative leave without pay, or more or less, administrative leave with pay
    and is not [sic] going to stay there.’” (Pl. Opp. at 21 (quoting Deposition of Plaintiff Timothy
    Reed, 281: 16-22, Ex. 14 to Pl. Opp.).) Defendant counters that “it is standard procedure to
    place someone on administrative leave during an internal law enforcement investigation, and
    administrative leave pending an investigation is not the same as firing, otherwise CPD would
    have just fired Reed.” (Def. Reply at 5-6). This does not, however, answer plaintiff’s assertion
    that at the CPD an administrative leave inevitably precedes firing. Whether a reasonable
    employee would have come to the same conclusion that plaintiff did, based on the same
    knowledge of the CPD’s disciplinary history, is a matter of dispute that requires further factual
    development and cannot be decided on this motion for summary judgment.
    C.      Causal link
    Defendant argues that “any disclosure by Carter of information regarding Reed’s
    weapons charge is too tenuously linked to Reed’s separation from the CPD to demonstrate an
    adverse effect,” because plaintiff made calls himself to Lt. Boyd and Bourdon, which defendant
    argues would have triggered the CPD investigation in any case. (Def. Mem. at 22.) However,
    plaintiff argues that Carter’s initial call to CPD predated plaintiff’s calls, and triggered the CPD
    investigation. (Pl. Opp. at 23.) Construing the evidence in the light most favorable to plaintiff, it
    is reasonable to infer that Carter’s call acted as a catalyst in the process that ultimately led to
    plaintiff’s constructive discharge.
    16
    Defendant also suggests that it was plaintiff’s dishonesty during the CPD investigation
    that led to an adverse finding against him (Def. Mem. at 23), which ignores that the investigation
    might never have been opened if Carter had not made the initial disclosures. Furthermore,
    plaintiff could viably claim actual damages independent of the constructive discharge (e.g.,
    pecuniary loss from the leave without pay). As a result, defendant is denied judgment as a
    matter of law on this element of the claim as well.
    CONCLUSION
    For the reasons stated, the Court will deny defendant’s motion for summary judgment. A
    separate Order accompanies this Memorandum Opinion.
    /s/
    ELLEN SEGAL HUVELLE
    United States District Judge
    Date: October 19, 2012
    17
    

Document Info

Docket Number: Civil Action No. 2010-1160

Citation Numbers: 899 F. Supp. 2d 25, 2012 WL 5077498, 2012 U.S. Dist. LEXIS 150464

Judges: Judge Ellen S. Huvelle

Filed Date: 10/19/2012

Precedential Status: Precedential

Modified Date: 11/7/2024

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