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Doe v. Winter

April 5, 2007

JOHN DOE, PLAINTIFF
v.
DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY,*FN1 DEFENDANT



The opinion of the court was delivered by: Yvette Kane, Chief Judge

(Chief Judge Kane)

MEMORANDUM

Before this Court are Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (Doc. No. 41), Plaintiff's motion for default judgment or for a spoliation instruction (Doc. No. 39), Plaintiff's motion to continue using the pseudonym John Doe (Doc. No. 83), and Plaintiff's motion to re-open the record (Doc. No. 97). The parties have briefed the motions, and they are ripe for disposition. Upon consideration of the parties' arguments, a thorough review of the record, and for the reasons set forth below, the Court will grant Defendant's motion for summary judgment, and deny Plaintiff's motions as moot.

I. BACKGROUND

A. Factual Background*fn2

John Doe is a former Navy employee. In 2001, he served as a Supervisory Information Technology Specialist for a branch of the Navy, now referred to as NAVSISA (Naval Supply Information Systems Activity), in Mechanicsburg, Pennsylvania. He served in this capacity until January 2002, when he was transferred to a nonsupervisory position as a Project Officer. The circumstances surrounding that transfer represent the core of this action.

In his capacity as a Supervisory Information Specialist, Doe supervised a number of employees, including Ron Sivak, Julie Mock, Dave Brunner, and David Kramer. Shortly after these employees began working under Doe, they began filing workplace complaints and union grievances against him. Doe's superiors consistently supported him in his role as supervisor and determined that the allegations against him were baseless. Nevertheless, these employees continued to attempt to bait Doe into overreacting. For example, knowing that Doe was Jewish, Sivak told Doe that "[he did not] like working in this Auschwitz work environment;" posted a sign at his desk that read "Arbeit Macht Frei," referring to the infamous slogan posted at Nazi concentration camps; and after Doe asked him to take the sign down, Sivak replaced it with one featuring the same message, albeit in Cyrillic lettering (Doe Dep. 32-37; Doe Dep. Ex. 20, at 5.) Sivak also placed bullet-hole decals on his desk, which to Doe signaled a veiled threat of workplace violence. (Id.)

Still, Doe's supervisors supported him. On December 12, 2001, the NAVSISA management held a meeting with Doe to discuss the complaints and problems Doe was experiencing with his subordinate employees. At the meeting, Doe's supervisors discussed methods of addressing the problems, and even asked Doe for his input as to how to handle the situation. Ultimately, Doe suggested that he intended to confront the challenges in a professional manner, and agreed to use progressive-discipline policies to regain control over his subordinates.

Before that meeting took place, two anonymous "hotline call" complaints were lodged against Doe. The first call, placed with the Inspector General's office on September 26, 2001, included the following allegations:

The caller stated that [Doe] sexually harassed an employee. [NAVSISA] removed his security clearance, but they reinstated him in 1999. Currently female employees have filed numerous sexual harassment complaints against [Doe]. In retaliation, [Doe] revoked the security clearances of three employees. He did not give a reason for his actions. Those employees, however, handle or have access to passwords of 3,000 base employees. (Naber Dep. Ex. 3, Aug. 4, 2005.)

In the second call, placed with the entity directly above NAVSISA (the Naval Supply Systems Command) on November 5, 2001, the caller alleged that:

Back in June, [Doe] assaulted a female employee and the Command has done totally nothing about it. There are people back there that are terrified to come in, they think he may have a gun. At times he just loses it, he rants and raves and screams and hollers -- it's just unbelievable. Wish you people could do something because FMSO refuses to remove him.

(Id.)*fn3

Based on these hotline calls, and pursuant to established procedures, Dave Duckett (the Director of Command Evaluation for NAVSISA) conducted a personnel investigation into the allegations of the complaint. In the course of the investigation, Duckett determined that the majority of the allegations in the complaints were unsubstantiated. But during his investigation on the alleged revocation of Doe's security clearance, Duckett obtained copies of several documents. One of those documents, a letter dated August 2, 1991, indicated that Doe's clearance had been revoked on May 14, 1991. Another document, a letter dated May 12, 1993, stated that upon reconsideration of the decision to revoke his security clearance, Doe would be eligible for sensitive positions. The third document, a copy of Doe's Electronic Personnel Security Questionnaire (referred to as a SF-86 form) submitted by Doe in 1999 as part of a security-clearance application, contained an affirmation by Doe that his security clearance had never been revoked. Based on the discrepancy between the letters, which plainly stated that Doe's security clearance had been previously revoked, and the representations on Doe's SF-86 form, Duckett relayed his finding that Doe had potentially falsified his security-clearance application.

On January 11, 2002, the NAVSISA management met to discuss the revelations of Duckett's investigation into the hotline-call complaints. At that meeting, Doe's supervisors agreed that the investigation should be referred to the Department of Navy Central Adjudication Facility ("DON CAF"), to resolve any issues related to Doe's possible falsification of his SF-86 form. Additionally, Doe's supervisors agreed that plaintiff's security access should be temporarily suspended and that Doe should be transferred to another less security-sensitive position.*fn4

Later that day, two of Doe's supervisors called Doe to inform him of the meeting and the substance of the hotline complaints' allegations, and to tell him that his security clearance was suspended until resolution by DON CAF of an investigation into whether he falsified his SF-86 form. Doe told them that he filled out the SF-86 form in accordance with the advice given to him by Jean Stanley, an employee at the Security Division of NAVSISA. Doe's supervisors indicated that the issue needed to be resolved by DON CAF.

Doe was thereafter transferred from his position as a supervisor to a nonsupervisory position as a Project Officer in the Navy/Marine Corps Internet ("NMCI") project.*fn5 In the new position, Doe performed his job very effectively. While Doe worked at NMCI, his previous position was filled. NAVSISA then reorganized, and Doe's former position ended up on an outsourcing list.

On March 25, 2002, Doe contacted the Agency's EEO office. The next day, Doe and his attorney met with an EEO counselor. Doe subsequently filed a formal EEO complaint alleging six counts of discrimination on the basis of age, religion, and retaliation. Two of the six counts related directly to Doe's permanent reassignment, two related to the security-clearance investigation, and the remaining two related to the actions of Doe's subordinate employees. Doe's retaliation claims focused on three of Doe's prior activities: (1) his opposition to an incident of same-sex sexual harassment occurring in 1987; (2) his filing of an EEO complaint in 1991 based upon discrimination on the basis of a perceived mental disability; and (3) his initiation of EEO processes in 1998 related to allegedly discriminatory failure to promote.

On July 8, 2002, DON CAF determined that Doe did not falsify his SF-86 form, and reinstated his security clearance. Shortly thereafter, Doe asked that his former second-level supervisor, Leonard Faerber, return him to his original supervisory position. Faerber told Doe that he could not reinstate him to his previous position, despite DON CAF's adjudication of the security-clearance issue in Doe's favor, because Doe's reassignment was permanent, and because he was making a good contribution to the NMCI project. At a meeting on July 12, 2002, Faerber recommended that Doe remain in NMCI.

On August 17, 2002, Doe amended his EEO complaint to include two additional counts of discrimination related to the decision not to return him to his former supervisory position. On October 8, 2002, Doe again amended his complaint to include an allegation that Defendant attempted to intimidate Doe into dropping his pending EEO complaint.

Meanwhile, Doe's resume had been referred for two promotions. Both positions were filled by other candidates, one of whom was Jewish. Doe was notified that he was not selected for promotion on August 16, 2002, and then on October 21, 2002. On November 25, 2002, Doe amended his EEO complaint to include counts related to his non-promotion.

The EEOC investigated Doe's claims. On February 13, 2004, Defendant moved to dismiss Doe's complaint without a hearing. In his response to Defendant's motion, Doe stated that: "Based on the investigation of [Doe's] EEO Complaint by Terry Calcutt and our own discovery taken in this Matter, [Doe] is willing to limit his Complaint to" four of his reprisal claims. (R. 224.) On May 27, 2004 the Administrative Judge entered judgment in favor of the Defendant, but noted that "[Doe] limited his claim to reprisal discrimination based on the incidents discussed." (R. 226.) After his EEO complaint was dismissed, Doe agreed to take early retirement and received $25,000.

Doe thereafter brought ...


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