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DONG v. SMITHSONIAN INST.

October 31, 1996

MARGARET DONG, Plaintiff,
v.
SMITHSONIAN INSTITUTION, Defendant.



The opinion of the court was delivered by: KESSLER

 The Plaintiff, Margaret Dong, brings this action against her employer, the Smithsonian Institution, for damages caused by Defendant's alleged breach of its statutory obligations regarding the collection of employment information under the Privacy Act of 1974, 5 U.S.C. § 552a(e)(2)(1994).

 I. Findings of Fact

 Plaintiff has been employed by the Hirshhorn Museum and Culture Garden since 1985. She began as a clerk-typist and was promoted to assistant registrar for outgoing loans. She is technically classified under the civil service system as a Museum Registration Specialist, and her civil service rating is currently GS-9.

 Plaintiff works with individuals and organizations outside the museum to arrange for the loan of objects from the Hirshhorn to curators, directors, and registrars of other museums. Her job entails a wide range of responsibilities, and it appears that Ms. Dong has always performed them well. Over the years, her ratings on performance evaluations have been highly successful and, on occasion, outstanding.

 One of Ms. Dong's duties, when appropriate, is to act as a courier for loan objects in transit. During the week of September 13 through 17, 1993, Ms. Dong served as a courier for the painting Circus Horse by Joan Miro, which is owned by the Hirshhorn. Ms. Dong accompanied the painting from Barcelona, Spain, to the Museum of Modern Art in New York City, because she was concerned about the condition of the painting's frame. The shipping company handling the exhibit, sharing that concern, asked Ms. Dong to act as a courier.

 Ms. Dong took annual leave for these days, even though she was entitled to take this trip on regular work time. Her airplane ticket, as well as a standard per diem fee, was provided by the Museum of Modern Art. Nothing in the record suggests that she did anything but serve as a courier on this trip. Her trip was not for vacation or pleasure.

 Ms. Dong did not obtain the approval of the director of the Hirshhorn for this courier trip. Indeed, she told no one at the Hirshhorn that she would be taking the trip. There is no question that the failure to obtain the director's approval was a violation of museum procedures and regulations. Ms. Dong was ultimately suspended for five days for the violation of those museum procedures. That suspension is not an issue in this lawsuit.

 Ms. Dong's failure to obtain the director's approval was clearly intentional on her part. Serving as a courier was a standard part of her job. She had never had a request to act as a courier turned down in the past, and she had no reason to believe that this request would be denied.

 The reason she did not follow prescribed procedures was an unusual one. According to her testimony, the reason that she did not seek approval for the trip was related to problems she was having with a co-worker. Apparently, the co-worker caused problems when Ms. Dong was away on couriering duty, but not when she was simply out of the office on annual leave. Therefore, Ms. Dong chose to avoid problems with that co-worker by simply taking annual leave and not letting anyone know that she was acting as a courier for the Miro painting.

 During the week of October 18, 1993, the administrator of the Hirshhorn, Ms. Beverly Pierce, heard a rumor from an employee that Ms. Dong had taken an unauthorized couriering trip. Ms. Pierce discussed the rumor with Douglas Robinson, who was the registrar of the Hirshhorn and Ms. Dong's direct supervisor. Ms. Pierce is Mr Robinson's supervisor, and she asked him to investigate the rumor. Mr. Robinson found no evidence of such a trip or its authorization when he investigated the Hirshhorn files.

 Mr. Robinson then contacted Diane Farynyk, the registrar of the Museum of Modern Art to further investigate the rumor. He asked Ms. Farynyk to check the files of the museum for information regarding the transporting of the painting from Barcelona to New York. After checking the files, Ms. Farynyk contacted Ms. Pierce (in the absence of Mr. Robinson) at the Hirshhorn. Ms. Pierce also corresponded with Aileen Chuk, who was working at the Museum of Modern Art at the time the painting was transported there and arranged the courier trip with Ms. Dong.

 Through her correspondence with Ms. Farynyk and Ms. Chuk, Ms. Pierce confirmed that Ms. Dong had couriered the Miro painting from Barcelona to the Museum of Modern Art in New York City.

 Thereafter, Ms. Pierce conferred with employees at the Smithsonian in the Office of General Counsel and in the Office of Human Resources regarding the appropriate procedure to be followed and appropriate ...


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