                            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.



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       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




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