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VEITCH v. ENGLAND

United States District Court for the District of Columbia


April 4, 2005.

D. PHILIP VEITCH, Plaintiff,
v.
HON. GORDON R. ENGLAND, SECRETARY OF THE NAVY, et al., Defendants.

The opinion of the court was delivered by: JUDITH M. BARZILAY, Judge

MEMORANDUM OPINION

INTRODUCTION

Plaintiff, Rev. D. Philip Veitch, ("Chaplain Veitch," "Rev. Veitch"), a former active-duty Navy chaplain, filed this suit seeking his reinstatement and return to active duty following his separation from the Navy on September 30, 2000. Plaintiff seeks equitable, declaratory, and injunctive relief to protect his rights under the First and Fifth Amendments, the Religious Freedom Restoration Act ("RFRA"), other federal statutes, and the Navy's regulations. Rev. Veitch claims that the Navy persecuted him for his religious faith and practices; censored his religious speech and removed him from his Protestant congregation's pulpit for preaching historic Protestant doctrines; retaliated against him for officially complaining about the deprivation of those rights; and coerced him into resigning from the Navy. Plaintiff's Complaint includes the following counts: (1) a violation of the First Amendment's free exercise and establishment clauses; (2) a violation of Plaintiff's First Amendment Rights of free speech and illegal retaliation for Plaintiff's filing of an equal opportunity complaint; (3) a violation of equal protection under the Fifth Amendment, alleging, inter alia, inconsistent application of the Uniform Code of Military Justice and the Navy's allegedly arbitrary and capricious denial of Plaintiff's request to withdraw his resignation; (4) illegal or constructive discharge due to hostile work conditions, including the threat of a court-martial that created a climate of duress and coercion; (5) a violation of the RFRA; and (6) illegal retaliation in response to Plaintiff's complaint of religious discrimination through the Navy's approved channels. Discovery has been completed and this matter is before the court on cross-motions for summary judgment pursuant to FED. R. CIV. P. 56. The parties have submitted memoranda and exhibits in support of, and in opposition to, the pending motions, including declarations and excerpts from various depositions taken during discovery.

  BACKGROUND FACTS AND PROCEDURAL HISTORY

  Rev. Veitch is an ordained minister in the Reformed Episcopal Church and was endorsed by his church to become a Navy chaplain. First Am. Compl. ¶ 7; Veitch Dep. at 346:22-347:1. From June 1997 until September 2000, Plaintiff served as a commissioned officer with the rank of lieutenant commander in the U.S. Navy Chaplain Corps. In December 1997 Plaintiff and his family were assigned to the Naval Support Activity (NSA) in Naples, Italy (hereinafter "Naples"). Plaintiff's wife testified that when the Veitch family arrived in Naples, Captain Ronald Buchmiller, Chaplain Veitch's new supervisor, told her that her husband would "not be doing much" during his Naples tour of duty. Sharon Veitch Decl., at 3, ¶ 15. The parties disagree whether such a statement was made, and, if so, whether it demonstrated Captain Buchmiller's alleged animus toward Plaintiff or simply meant that Plaintiff would be given time to settle in before receiving more work. Buchmiller Dep. at 64-65.

  Plaintiff argues that Captain Buchmiller's discriminatory animus originated even prior to his arrival in Naples, when Captain Buchmiller and Plaintiff were both stationed at Norfolk, Virginia. At that time, Plaintiff Veitch considered filing a discrimination complaint against his then supervisor through the Navy's approved grievance channels. According to Plaintiff, Captain Buchmiller warned him that the Chaplain Corps would "end his military career" if he exercised his right to file an equal opportunity complaint. Veitch Dep. at 215:13-18. Captain Buchmiller denied that he ever threatened Plaintiff, testifying that he advised Plaintiff against filing a complaint because he was leaving Norfolk for another assignment and it would "end up making [Rev. Veitch] bitter." Buchmiller Dep. at 20:7-22. The parties did not make any claims with respect to the underlying facts of that complaint, as Plaintiff refers to the events in Norfolk merely to allege that Captain Buchmiller planned to ruin his Navy career.

  According to Plaintiff, Captain Buchmiller, a Roman Catholic priest, Chaplain Steven Pike, an Episcopal chaplain, and Captain John J. Coyne, the commanding officer of the Naval Support Activity in Naples, conspired to create an atmosphere of religious intolerance directed toward conservative and evangelical Protestants in Naples, including Plaintiff, in part by suggesting that he should preach religious pluralism. First Am. Compl. ¶ 14; Pl. Br. in Supp. of Opp'n and Cross-Mot. for Summ. J., at 45. In support, Plaintiff cites to the testimony of several evangelical Protestants who worked in the Naples chapel describing the chapel climate created by Captain Buchmiller. See, e.g., Siegfriedt-Wilson Dep.; Bowling Decl.; Corean Decl.; DeMarco Decl. There are statements in the record before the court that certain evangelical Protestants in the Navy, including chaplains and their spouses, felt "anti-evangelical hostility" from Chaplain Pike and the chapel leadership under Chaplain Buchmiller. See, e.g., Colon Decl., at ¶ 9. Chaplain Siegfriedt-Wilson testified that he left the Naples chapel because he "could not do [his] job" because "the stress was too great . . . [and they] were not wanted." Siegfriedt-Wilson Dep. at 63:2-21. Brendajo Bowling, who worked as a pianist for Chaplain Pike in Naples, testified in her declaration that "the atmosphere of fear and hostility toward evangelicals" was "created, controlled and fed by Chaplains Buchmiller and Pike." Bowling Decl. ¶ 5. Mary Colon, who was a member of the evangelical congregation at the Navy chapel at the relevant times, stated that in her responsibilities as the Protestant Director of Religious Education, she "witnessed and experienced anti-evangelical hostility from Chaplain Pike and the chapel leadership under Chaplain Buchmiller." Colon Decl. ¶ 9. There are no specific descriptions in the record detailing actions or incidents which would demonstrate that the environment in the Navy chapel was hostile and intolerable.

  Central to Plaintiff's own experience of religious discrimination is his claim that Captain Buchmiller criticized his sermons and sought to stifle their content. See, e.g., First Am. Compl. ¶ 60; Veitch Dep. at 346:6-14. Plaintiff's allegations relate to a sermon he gave on November 8, 1998, which elicited several complaints addressed to Captain Buchmiller. Veitch Dep. at 376-77 (describing his sermon as "anti-priest."). The complaints came from chaplains and charged Plaintiff with "speaking ill of other chaplains" and calling them "unregenerate." Buchmiller Dep. at 92-93. Although Captain Buchmiller himself did not attend or read Rev. Veitch's sermon, he was compelled to discuss the sermon with Plaintiff in light of those complaints. The parties disagree about what exactly was said at the meeting between Plaintiff and Captain Buchmiller: Plaintiff testified that Captain Buchmiller forbade him to preach "Sola Scriptura," a central tenet of Plaintiff's faith. Veitch Dep. at 346. Captain Buchmiller testified that he did not forbid Plaintiff from preaching Sola Scriptura, but instead asked him not to denigrate other chaplains. Buchmiller Dep. at 93, 184 ("I told him that I had no problem with Sola Scriptura as long as he was not being divisive and destroying the reputation of the other chaplains." Id. at 184.). Following the meeting, Plaintiff sent an e-mail to Captain Buchmiller:

(1) You will need to be far more specific in your statements about "antipriest." I didn't understand your point. You were pretty emotional and dogmatic. . . .
(2) . . . you should ask before making statements particularly in the emotional tones and in front of RP's. The junior RP's have trouble with the gossip from senior khaki. I have advised you about that. . . .
E-mail from Veitch to Buchmiller, Nov. 12, 1998. This e-mail was followed shortly thereafter by another e-mail to Captain Buchmiller:
You will have to be "much more" thorough in your counseling to me dtd. 12 Nov. 98. You will need to capture it in writing. If it is not written, it does not exist. . . . Your written counsel was distinctively unhelpful due to its vagueness and lack of definition. . . .
(2) Your comment about "negativity" in the sermon on 8 Nov. 98. You will just have to ask the 70 people who were there. . . . You will have to be far more explicit and thorough to satisfy my inexorable thirst for truth.
(3) I am pressing for a return to the old wells of theology. Neither you, any CO [Commanding Officer], or the CNO will quench that. . . . This is the lead reason why I will leave the CHC [Chaplain Corps]. I desire to work alongside those with a similar vision. . . .
E-mail from Veitch to Buchmiller, Nov. 13, 1998, 9:05 a.m. Captain Buchmiller responded to Plaintiff in writing, explaining that "[S]ola [S]criptura is not my problem," and counseling Plaintiff not "to imply that everyone else is wrong" or that "you are the only source of the truth with implications that our other chaplains have no valid theology." E-mail from Buchmiller to Veitch, Nov. 13, 1998. Plaintiff replied to Captain Buchmiller: "You clearly have not gotten it," blaming him for "being all over the place" and for making "an imputation you can't sustain." Email from Veitch to Buchmiller, Nov. 13, 1998, 11:55 a.m. Rev. Veitch wrote that the issue between them became "personal," and that same day, Plaintiff filed an EEO Complaint*fn1 against Captain Buchmiller, alleging the following as the basis for his complaint:
Need assistance and counsel re: content of sermons. Feeling harassed by command chaplain. This is the second time this has happened. A third instance occurred with twists on a sermon from Matthew 10. I have been counselled [sic] about negativity and non-pluralism without adequate definition.
EEO Complaint, Nov. 13, 1998. Commander Lawrence Zoeller, a Medical Corps Officer, conducted the equal opportunity investigation and concluded that Rev. Veitch "engaged in nonpluralistic activity as evidenced by his sermons and his statements to the inquiry officer."*fn2 EEOC Report, ¶ 4. Commander Zoeller also concluded that Captain Buchmiller counseled Chaplain Veitch both formally through mid-term counseling and his fitness report, and informally during the past 10 months to be less negative in his sermons and have a "more pluralistic approach to Christian ministry." Id. Commander Zoeller's report included the following definition of pluralism:
Pluralism is a well-established doctrine encompassing both ethical . . ., administrative . . ., and practical standards . . ., in the USN Chaplain Corps. The basic tenant of pluralism has a long history in the Chaplain Corps. . . . In laymen's terms the Navy Chaplain must minister to all faiths in such a manner to be inclusive . . . to all and unoffensive . . . to all Navy personnel.
EEOC Report, Attach. 1. Based on this concept, Commander Zoeller determined that Chaplain Veitch's sermons were "derogatory to other faiths because of specific references to basic beliefs of other religions," and dismissed Plaintiff's EEO Complaint. EEOC Report, ¶ 4, Attach. 1.

  Commander Zoeller testified that he believed that Navy chaplains would "have to be very careful to be pluralistic in their sermons," especially knowing that there could be members from a different religious group or denomination in their congregations. Zoeller Dep. at 33:11-34:19. Plaintiff's congregation was composed of several Evangelical Protestant denominations, including liturgical and evangelical. Bryan Decl. ¶¶ 2, 7(c). In support of his claim that Commander Zoeller improperly labeled his sermons as non-pluralistic, Plaintiff cites to the testimony of Lieutenant Commander Mark Hendricks, who was deposed as an authority on the Navy's policy of pluralism and made representations on behalf of the Navy about that policy. Commander Hendricks explicitly stated that 10 U.S.C. § 6031 and Naval Regulation 0817*fn3 "are two of the policy statements that speak to what chaplains are able to do," and that "the concept of pluralism would most closely depict the environment in which we're called to serve as chaplains in the military," noting that "the Navy doesn't dictate what is preached, so the chaplain has freedom in that environment." Hendricks Dep. at 27:10-24; 127:11-24.

  Plaintiff concedes, however, that after November 13, 1998, Captain Buchmiller neither mentioned the issue of Sola Scriptura nor ever raised problems with any of Plaintiff's sermons. Veitch Dep. at 398-99. His additional basis for alleging discrimination and hostility is premised on Captain Buchmiller's alleged remark to Plaintiff's wife shortly after his arrival in Naples that he "won't be doing much here." While the parties contest the meaning of this statement, Plaintiff concedes that Captain Buchmiller had assigned him the duty to assist with Vacation Bible School. Veitch Dep. at 270-71, 282-83. Plaintiff did not take this assignment seriously because he learned about it from a less senior chaplain. See Veitch Dep. at 281-83. Plaintiff, however, did not attempt to address the issue of collateral duties with Captain Buchmiller. Veitch Dep. at 257. In Rev. Veitch's June 1998 mid-term counseling report, Captain Buchmiller noted that Chaplain Veitch did not perform collateral duties. Fitness Report for Veitch, from Dec. 1997-Mar. 1998; see Buchmiller Decl., ¶ 3. In the "Mission Accomplishment and Initiative" section of the fitness report, Captain Buchmiller remarked that Plaintiff did "only what [he] want[ed] to do." Fitness Report for Veitch, from Dec. 1997-Mar. 1998. Chaplain Veitch was also characterized as "not dependable: and not being "private" in his e-mails, needing "more cooperation with . . . [Vacation Bible School.]" Fitness Report for Veitch, from Dec. 1997-Mar. 1998.

  In January 1999, Plaintiff was assigned six collateral duties, including Vacation Bible School. Buchmiller Decl. ¶ 3, Attach.1. Plaintiff, however, was dissatisfied with the nature of his duties and expressed his discontent in an e-mail to Captain Buchmiller: "I offered, at midterm counselling [sic], a rejoinder to which you offered no dispute or counter. And then, all of a sudden, I am assigned in 1999 "6" duties? Called from the "bench" to the field? That is a weak metaphor. The `grave' is more appropriate. You put me in the grave, dead, cold, lifeless, and now, there is to be a resurrection?. . . . That will be like trying to get blood out of a turnip. Chaplain Buchmiller, you are not Jesus . . . not even close." E-mail from Veitch, Feb. 8, 1999. Plaintiff stated that he would not perform any collateral duties that involved working with Captain Buchmiller or Chaplain Pike "for personal and religious reasons." Veitch Dep. at 415-16 (referring to E-mail from Veitch, Feb. 8, 1999). Plaintiff also testified that after he had mentioned to Chaplain Buchmiller that he was thinking about resignation, Chaplain Buchmiller began to ask him on a daily basis when he would resign. Veitch Dep. at 285:8-287:4, 410:6-411:2. Plaintiff, however, acknowledged that Captain Buchmiller stopped asking him about resignation upon Plaintiff's request. Veitch Dep. at 287:1-4.

  Following these events, Captain Coyne, the commanding officer, became aware of the email correspondence between Plaintiff and Captain Buchmiller. After reviewing the EEOC Report completed by Commander Zoeller, Captain Coyne concluded that there was no evidence of discrimination against Rev. Veitch, instead finding that Plaintiff's conduct was not "in keeping" with his understanding of the relationship between a Lieutenant Commander and a Captain. Coyne Dep. at 68-69 (finding that the content of the e-mails deviated "from a military bearing and discipline standpoint." Id. at 71.) At the time Plaintiff was contemplating filing another discrimination complaint against Captain Buchmiller, Captain Coyne pressed charges against Plaintiff for disrespect toward Captain Buchmiller. Captain Coyne testified that this measure was supported by his finding that Chaplain Veitch "attacked [Buchmiller's] position as a senior officer," demonstrating "continued insubordination." Coyne Dep. at 84, 184. Plaintiff admitted that he thought it was conceivable that Captain Coyne might consider some of his emails to Captain Buchmiller to be disrespectful. Veitch Dep. at 421; see also id. at 330:13-15 (acknowledging that there was "an element of sarcasm[,] . . . frustration and annoyance" in his emails to Captain Buchmiller.) Plaintiff testified that he believed that it was "not standard practice" to address a senior officer disrespectfully, but that he felt that he was entitled to use a sarcastic tone after having unsuccessfully attempted to resolve his problems. Veitch Dep. at 330-33, 335-36.

  Based on his finding of insubordination, Captain Coyne initially considered taking Plaintiff to court-martial, but he determined that a "Captain's Mast," a form of non-judicial punishment under Article 15 of the Uniform Code of Military Justice ("UCMJ"), would be appropriate. See Coyne Dep. at 147-48 (testifying that as a commanding officer he had various options for discipline, such as "various sorts of letters and/or court martial." Id. at 154:6-10.) As a result, Rev. Veitch was charged with "disrespect towards a superior commissioned officer for e-mails from September 2, 1998, through February 8, 1999, sent to Captain Buchmiller that showed "marked disdain, insolence, and contempt" under Article 89 of the UCMJ and for "failure to go to appointed place of duty" for absences on August 14, 1998, October 9 and 29, 1998, and November 30, 1998, under Article 86.*fn4 Veitch Dep. at 423-24, 426-27, Ex. 19. After consulting with counsel, Veitch refused the Captain's Mast. Veitch Dep. at 434-35. Captain Coyne then decided to pursue the charges through court-martial proceedings. See, e.g., Coyne Decl. ¶ 4.

  In anticipation of the court-martial, Plaintiff was removed from his preaching duties, Coyne Dep. at 102, and reassigned duties at the Family Service Center. Veitch Dep. at 454. Veitch's fitness report prepared by Captain Coyne stated that Plaintiff was "unwilling to adapt to military requirements. . . . Continues to create friction within the chapel community. [Was] [u]nwilling to work with other chaplains. Uses religious persecution as an excuse for poor performance. . . . [Was] [d]etrimental to command mission accomplishment. Was removed from pulpit for failure to preach pluralism among religions." Veitch's Fitness Report, June 15, 1999. Captain Coyne recommended that Veitch be separated as unfit to be a Navy Chaplain. Id. In his deposition, Captain Coyne in retrospect explained that his removal of Rev. Veitch from his pulpit was entirely based on his concern that Plaintiff would use the pulpit to launch personal attacks not only on Captain Buchmiller but also on other chaplains and servicemen and to denigrate other religious beliefs. Coyne Dep. at 89-90, 102:4-9. Captain Coyne believed that "the theoretical disputes between Captain Buchmiller and Commander Veitch . . . under no circumstances would . . . justify the tone and the demeanor of the e-mails that Commander Veitch sent to Captain Buchmiller." Coyne Dep. at 182:24-183:5. Lieutenant Commander Hendricks explained that although the "Navy does not dictate what chaplains preach in the context of their sermons," chaplains must exercise decorum and courtesy in addressing others as needed to maintain "good order and discipline in that command." Hendricks Dep. at 83. The events preceding Plaintiff's actual separation unfolded as follows. After initially requesting a court martial in lieu of the non-judicial Captain's Mast, Rev. Veitch, with the advice of his assigned Navy JAG counsel, resigned his commission. First Am. Compl. at ¶ 25. Plaintiff testified that the JAG attorney told him that resignation was one of his options to avoid the overseas court-martial. See Veitch Dep. at 424-26. Following Veitch's resignation, Captain Coyne terminated the court-martial charges, instead issuing a Nonpunitive Letter of Caution, dated April 8, 1999. Coyne Decl. ¶ 5. In April 1999, shortly after he submitted his request for resignation, Plaintiff requested that the Department of Defense (DOD) Inspector General (IG) investigate the circumstances surrounding his resignation. See DOD Investigation; First Am. Compl. ¶ 27. Plaintiff's complaint alleged that his resignation was coerced and that Chaplain Buchmiller had created a culture of religious prejudice and oppression against him and the evangelical faith groups at Naples. Id. In May of 1999, DOD IG reported that it would investigate Plaintiff's complaint. See, e.g., First Am. Compl. ¶ 28.

  On May 17, 1999, Plaintiff's resignation was approved with a November 1999 separation date. In June of 1999, Captain Coyne's tour of duty as the Commanding Office at Naples ended and he was relieved by Captain B.J. Gray. Coyne Decl. at ¶ 6. On July 23, 1999, Plaintiff wrote a letter to the Secretary of the Navy, via the new Commanding Officer, Captain Gray, and the Chief of Naval Personnel, requesting to withdraw his resignation and claiming that his March 1999 resignation was coerced. Veitch Dep. at 456-57, Ex. 24. Captain Gray forwarded Plaintiff's withdrawal request, strongly recommending disapproval. Gray Decl. ¶ 3. In early November of 1999, the Office of the Secretary of the Navy ordered Plaintiff's resignation orders held in abeyance pending the outcome of the DOD IG's investigation into his reprisal complaint. First Am. Compl. ¶¶ 31-32. The Inspector General investigation was completed on May 23, 2000, concluding that Plaintiff's "disciplinary problems . . . resulted from his own misconduct" and that his allegations of reprisal were unsubstantiated. See Gott Dep. at 20-22, Ex. 1. Plaintiff was informed that the DOD IG did not find impropriety on the part of the Navy. Veitch Dep. at 475-76, Ex. 33. The DOD IG investigation report contains a statement made by Captain Coyne that it was his "judgment that [the] letter of resignation coupled with the nonpunitive letter was sufficient punishment for what [Veitch] had done." DOD Investigation, at 26.

  On September 30, 2000, Plaintiff was separated from the Navy. Veitch Dep. at 493. On November 21, 2000, Plaintiff received his leave payment from the Navy. Veitch Dep. at 480:21-481:1. On December 13, 2000, Plaintiff filed his complaint in this Court for declaratory and equitable relief and moved for a preliminary injunction, requesting, inter alia, that this court order the Navy to pay Plaintiff for the alleged unused leave remaining when he was separated from active duty. In December 2000, Defendants mailed a check for payment of unused leave to Plaintiff. Argall Decl.

  On February 27, 2001, this Court denied Plaintiff's motion for a preliminary injunction, holding that Plaintiff failed to demonstrate that he would suffer irreparable harm if his motion were denied, and that Plaintiff had not demonstrated that he had a substantial likelihood of success on the merits of his claims. Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001).

  DISCUSSION

  I. SUMMARY JUDGMENT PRINCIPLES

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In this case, the parties have filed cross-motions for summary judgment, and they disagree on some facts pertaining to their differing legal theories. Cross-motions for summary judgment do not alone warrant granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed,

(1) because a party entitled to summary judgment must bear the burden of establishing the indisputability of the facts which warrant judgment in his favor; (2) while the facts, which would justify judgment for one party on a particular legal theory, may be indisputable, the facts, which would justify judgment for the adverse party on a different legal theory, may be disputed; and (3) a party may make concessions for the purpose of his motion that do not carry over and support the motion of his adversary.
Volunteer State Life Ins. Co. v. Henson, 234 F. 2d 535, 537 (5th Cir. 1956) (citing 6 Moore's Federal Practice, 2d ed. 2092, Par. 56.13.); see Bricklayers, Masons and Plasterers Int'l Union of America v. Stuart Plastering Co., 512 F. 2d 1017, 1023 (5th Cir. 1975) ("The rationale for this rule . . . is that each party moving for summary judgment may do so on different legal theories dependent on different constellations of material facts."). Thus, when deciding cross-motions for summary judgment, the court "must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party." Westfield Ins. Co. v. Tech Dry, Inc., 336 F. 3d 503, 506 (6th Cir. 2003).

  Summary judgment is regarded as "an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555 (1986) (quoting FED. R. CIV. P. 1.). The court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259, 106 S. Ct. 2505, 2516 (1986) (internal citation omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (internal citation omitted). Furthermore, Rule 56 requires that a plaintiff, "in advance of trial and after a motion for summary judgment has been filed . . . come forward with some minimal facts to show that the defendant may be liable under the claims alleged." Sharafeldin v. Md. Dep't of Pub. Safety and Corr. Servs., 131 F. Supp. 2d 730, 736 (D. Md. 2001), aff'd 21 Fed. Appx. 227, 2001 (4th Cir. 2001) (unpublished opinion). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then "the plain language of Rule 56(c) mandates the entry of summary judgment." Celotex Corp., 477 U.S. at 322-23. "Moreover, only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment." Sharafeldin, 131 F. Supp. 2d at 736. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

  Applying these principles to the facts of this case, the court has concluded that Defendants' motion for summary judgement must be granted because Plaintiff has failed to show Defendants' liability for the claims alleged as explained below.

  II. CONSTRUCTIVE DISCHARGE VERSUS VOLUNTARY RESIGNATION

  The threshold issue in this case is whether Plaintiff's resignation was voluntary or coerced, as his standing to seek relief in this court is contingent on the court's finding of constructive discharge. See Taylor v. Fed. Deposit Ins. Corp., 132 F. 3d 753, 767 (D.C. Cir. 1997); Kim v. United States, 47 Fed. Cl. 493, 497 (2000). The court examines all the facts and circumstances in order to determine whether a specific resignation or retirement qualifies as voluntary. See McIntyre v. United States, 30 Fed. Cl. 207, 211 (1993). Generally, resignations are presumed to be voluntary. See, e.g., Kim, 47 Fed. Cl. at 497. "The presumption of voluntariness, however, can be rebutted [1] by demonstrating that the government caused the plaintiff to resign under threat of duress or by other coercion, [2] by demonstrating that the government intentionally misrepresented information relied on to the plaintiff's detriment, or [3] by showing that the plaintiff tried to withdraw his resignation before its effective date. . . ." McIntyre, 30 Fed. Cl. at 211; see Bergman v. United States, 28 Fed. Cl. 580, 585 (1993); Christie v. United States, 207 Ct. Cl. 333, 337-41, 518 F.2d 584, 587-88 (1975).

  In the present case, Plaintiff argues that he was constructively discharged because of intolerable work conditions created by Captain Buchmiller along with some other chaplains, alleging that the religious hostility towards Evangelical Protestants was intolerable and that Chaplain Buchmiller's "policy, program and practice of religious discrimination and personal prejudice made plaintiff's working conditions oppressive, intolerable and corrosive." First Am. Compl. ¶ 75. Plaintiff's additional theory is premised on his allegation of duress that rendered his resignation involuntary. Plaintiff argues that he was constructively discharged because Chaplain Buchmiller along with some other chaplains coerced him into resignation by preventing him from preaching strictly the tenets of his religion and directing him to "preach pluralism among religions." He claims that the Navy coerced him into resigning by threatening him with court-martial, and, alternatively, alleging that he was misled into resigning because the charge underlying the court-martial — disrespect toward a superior commissioned officer in violation of UCMJ Article 89 — was unconstitutional and otherwise legally unsupportable. Pl. Br. in Supp. of Opp'n and Cross-Mot. for Summ. J., at 33. The court will address these theories and further examine all other facts and circumstances that Plaintiff argues coerced him into resignation.

  a. Plaintiff's Claim of Intolerable Work Conditions

  To establish constructive discharge based on religious hostility or discrimination, the plaintiffs must not only show acts of discrimination, "but also that the employer deliberately made work conditions intolerable, leading the employee to quit involuntarily." See Adair v. England, 183 F. Supp. 2d 31, 67 (D.D.C. 2002) (considering the pleading requirements for individual Navy chaplains' claims of constructive discharge). Although the case law addressing the theory of intolerable work conditions involves civilian workers bringing Title VII discrimination claims,*fn5 the standards articulated in those cases are instructive.

  In deciding whether a work environment is hostile, courts have looked at the totality of circumstances from a reasonable person perspective and from the plaintiff's subjective perspective. See, e.g., Mungin v. Katten Muchin & Zavis, 116 F. 3d 1549, 1558 (D.C. Cir. 1997) (A constructive discharge requires "a finding of discrimination and the existence of certain `aggravating factors' . . . that would force an employee to leave."); Taylor, 132 F. 3d at 766 ("[A] constructive discharge occurs where the employer creates or tolerates discriminatory working conditions that would drive a reasonable person to resign."); Goldmeier v. Allstate Ins. Co., 337 F. 3d 629, 635 (6th Cir. 2003); Hafford v. Seidner, 183 F. 3d 506, 512 (6th Cir. 1999); Moore v. KUKA Welding Sys. & Robot Corp., 171 F. 3d 1073, 1080 (6th Cir. 1999); Kocsis v. Multi-Care Management, Inc., 97 F. 3d 876, 887 (6th Cir. 1996). Such circumstances include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., 510 U.S. 17, 23, 114 S. Ct. 367, 371 (1993); Conway-Jepsen v. Small Business Admin., 303 F. Supp. 2d 1155, 1167 (D. Mt. 2004) (the plaintiff, a female federal employee, established a Title VII retaliation claim because she reasonably found her hostile working conditions intolerable due to her supervisor's "lengthy, continuous, and pervasive pattern of retaliatory treatment for the reason that [the plaintiff] had objected to employment practices which were unlawful under Title VII."). Furthermore, to establish hostile work environment, the plaintiff must show that the offending behavior was "sufficiently severe or pervasive to alter the conditions of . . . [his] employment and create an abusive working environment." Pa. State Police v. Suders, 124 S. Ct. 2342, 2347 (2004) (quoting Meritor Sav., FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)).

  In this case, Captain Buchmiller approached Veitch believing that Plaintiff's sermons were improperly negative and undermined the environment of pluralism enshrined in the rules of the Navy Chaplain Corps. See, e.g, Chaplains Manual § 1202(5). For instance, in one of his sermons, Veitch allegedly preached that there were unregenerate clergy in the Chaplain Corps. See Prelim. Inquiry EEO Complaint, at 2, 5. Plaintiff admitted that Captain Buchmiller criticized his sermons only on a few occasions, and there are no indicia of religious animosity toward Plaintiff in Captain Buchmiller's e-mails. Furthermore, Plaintiff conceded that Captain Buchmiller neither mentioned the issue of Sola Scriptura nor ever raised problems with any of Plaintiff's sermons after November 13, 1998. Veitch Dep. at 398-99. Likewise, Captain Buchmiller stopped inquiring about Plaintiff's plans to resign upon Plaintiff's request. Veitch Dep. at 287:1-4. Plaintiff has not met his burden of proving "intolerable" conditions that would have compelled a reasonable person to resign because Captain Buchmiller's actions were not "severe or pervasive" considering the totality of circumstances.*fn6 See Suders, 124 S. Ct. at 2347, 2357 (holding that there were genuine issues of material fact concerning the plaintiff's hostile work environment and constructive discharge claims, where, inter alia, the plaintiff's "male supervisors subjected her to a continuous barrage of sexual harassment" until the time she resigned); Conway-Jepsen, 303 F. Supp. 2d at 1161 (finding hostile environment where the employer assigned numerous "program-irrelevant" work projects to the plaintiff, made their completion impossible by shutting down computers early, and screamed and swore at the plaintiff for making clerical mistakes).

  In addition, the declarations and depositions by several individuals — mostly civilians involved in the Navy chapel as members or workers at relevant times — submitted by Plaintiff to support his argument that the environment at the Chaplain Corps under the leadership of Buchmiller was hostile toward evangelicals, do not furnish any concrete descriptions of that environment. These declarations provide purely subjective feelings of those individuals without establishing an objective basis for their experience of hostility. No other facts point to "intolerable" work conditions that would force a reasonable person to resign. See Mungin, 116 F. 3d at 1558. Therefore, Plaintiff did not demonstrate a triable issue of hostile work environment.

  b. Plaintiff's Claim of Duress

  In order to prove duress, the plaintiff must establish "(1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party." Pitt v. United States, 420 F. 2d 1028, 1032 (Ct.Cl. 1970) (internal citation omitted); see Brown v. United States, 30 Fed. Cl. 227, 229-30 (Fed.Cl. 1993) (finding voluntary resignation where the plaintiff, a former Army service member, 1) chose the conditions of his resignation; 2) had the alternative of appearing before a court-martial and facing the impending charges against him; and 3) "[did] not dispute that he was court-martialed for the legitimate purpose of imposing criminal sanctions, rather than for the purpose of inducing his resignation"); Kim, 47 Fed. Cl. at 494, 498-99 (finding voluntary resignation where the plaintiff, a commissioned major in the U.S. Army Medical Service Corps, had a reasonable alternative to requesting retirement because she had the option of challenging the allegedly improper elimination action by the Army before a Board of Inquiry); but see Roscos v. United States, 213 Ct. Cl. 34, 549 F.2d 1386, 1389 (1977) (finding that the plaintiff's, an IRS employee's, retirement was involuntary because the plaintiff's wrongful transfer to a distant city coupled with the hardship to his family constituted "unjustifiable coercive action by the Government" where it was infeasible for the plaintiff to commute daily to a new work site and impractical for him to relocate because of the indefinite resolution of his administrative appeal).

  Plaintiff in this case claims that the Navy coerced him into resignation by seeking to connect Captain Coyne's decision to bring the charge of disrespect with Captain Buchmiller's alleged acts of religious hostility or discrimination and to cast them as a concerted effort by the Navy to induce Plaintiff's resignation. Specifically, Plaintiff argues that he was coerced to resign because 1) the "Navy's attempt to court-martial Chaplain Veitch was an act of gross misconduct in that it had no foundation since its underlying basis rested on [Commander] Zoeller's unlawful, unconstitutional definition of pluralism," and that 2) "Captain Coyne's Captain's Mast and his decision to bring Chaplain Veitch to court-martial cannot have a legal effect" because the charge underlying the court-martial was unconstitutional and otherwise insupportable. Pl. Br. in Supp. of Opp'n and Cross-Mot. for Summ. J., at 33-39.

  The evidence on the record, however, abundantly shows that Rev. Veitch was not charged with "disrespect toward a superior commissioned officer" based on the doctrinal grounds that underlay the dispute between Plaintiff and Captain Buchmiller. Captain Coyne's objective was to discipline Rev. Veitch for his disrespectful demeanor and failure to appear at appointed places. Plaintiff did not contest the primary factual basis for the disrespect charge, admitting that his emails to Captain Buchmiller were sarcastic, deviating from "standard practice." See Veitch Dep. at 330-33, 335-36. The charge of "disrespect toward a superior commissioned officer" was based on Captain Coyne's conclusion that Chaplain Veitch failed to treat another chaplain of a higher rank with due respect.*fn7 See Coyne Dep. at 84, 184. In addition, Plaintiff did not establish how this disciplinary charge, based on the content of Plaintiff's e-mails to Captain Buchmiller, is a reprisal for Plaintiff's EEO Complaint. Furthermore, Commander Zoeller's phrase that Chaplain Veitch was removed from his pulpit for "failure to preach pluralism" is not a completely accurate description of the reason for Plaintiff's removal from the pulpit. The record shows that Captain Buchmiller criticized Plaintiff's sermons for denigrating other chaplains and did not instruct or direct Plaintiff to "preach pluralism" or any other doctrine. In fact, this inept phrase appeared in the fitness report completed by Captain Coyne after he learned about the e-mail correspondence between Plaintiff and Captain Buchmiller and decided that Chaplain Veitch should be disciplined for his disrespectful demeanor. See Veitch's Fitness Report, June 15, 1999. Plaintiff's claim that he was not allowed to preach in a certain manner, which arguably violated the Navy's policy of pluralism, see, e.g, Chaplains Manual § 1202(5), does not exonerate Plaintiff from his failure to respect a fellow chaplain who was senior in rank.

  Considering Plaintiff's claim that bringing a chaplain to court-martial under Article 89 is unconstitutional or otherwise illegal, the court believes that there cannot be a rule that it is always unconstitutional to charge a chaplain with disrespect toward a superior commissioned officer. The court's conclusion in Rigdon v. Perry that a Navy chaplain could not be a "superior commissioned officer" in the context of the Article 89 was stated in dictum, and the constitutionality of subjecting chaplains to military discipline has not been directly addressed by a higher court. See 962 F. Supp. 150, 158-59 (D.D.C. 1987). Nonetheless, the Second Circuit held that an independent civilian chaplaincy would not be a feasible alternative to the existing Chaplain Corps because, inter alia, there was no evidence that "civilian chaplains would accept military discipline, which is essential to the efficient operation of our armed forces." Katcoff v. Marsh, 755 F. 2d 223, 236 (2d Cir. 1985) (emphasis added); see also In re England, Sec'y of the Navy, 375 F. 3d 1169, 1171 (D.C. Cir. 2004) (observing that a Navy chaplain has a "unique" role within the service, "involving simultaneous service as clergy . . . and as a commissioned naval officer.").

  Furthermore, in this case, Plaintiff's claim that the court-martial was illegal or unconstitutional is not dispositive for Plaintiff's claim of constructive discharge because Plaintiff admitted that his decision to resign was motivated by his desire to avoid the court-martial proceeding. First Am. Compl., ¶ 25. See Pitt, 420 F. 2d at 1032-33 (finding that the plaintiff resigned voluntarily even though the underlying court-martial was unconstitutional because the plaintiff's "predominant purpose" was "to defeat court-martial jurisdiction by severing his employment connection with the Army.").*fn8 In addition, no evidence in the record suggests that at the time of his resignation, Rev. Veitch thought that the charge of disrespect was unconstitutional. See Veitch Dep. at 335-36, 344-45, 421.

  Importantly, Plaintiff had two reasonable alternatives to resignation, a Captain's Mast or the court-martial. See e.g., Brown, 30 Fed. Cl. at 230-31; Pitt, 420 F. 2d at 1034. Plaintiff's argument that remaining in the Navy and fighting the disrespect charge would have been futile and, therefore, the court-martial was not a reasonable alternative to resignation is without merit. As commissioned officers, chaplains are subject to the court-martial jurisdiction, see Coppedge v. Marsh,*fn9 532 F. Supp. 423 (D.C. Kan. 1982), and even though military courts do not have the expertise to consider certain constitutional claims, those constitutional claims can be raised during court-martial proceedings. See, e.g., Schlesinger v. Councilman, 420 U.S. 738, 759-60, 95 S. Ct. 1300, 1313-14 (1975); Noyd v. Bond, 395 U.S. 683, 696 n. 8, 89 S. Ct. 1876, 1884 n. 8 (1969).

  Finally, no facts point to the possibility that the Navy intentionally misrepresented information relied on to Plaintiff's detriment. See Bergman, 28 Fed. Cl. at 587-88. Plaintiff had the opportunity to obtain the advice of counsel from the time he was charged with Article 89. Thus, he refused the option of a Captain's Mast and subsequently resigned to avoid the court-martial after having consulted with counsel.

  c. Other Factors of Voluntariness

  Under certain circumstances, the presumption of voluntariness can be rebutted by Plaintiff's showing that he tried to withdraw his resignation before its effective date. See Brown, 30 Fed. Cl. at 230-31; Cunningham v. United States, 423 F. 2d 1379, 1384-85 (Ct.Cl. 1970). Furthermore, the agency has to exercise a "discernible" discretion in denying the withdrawal of a resignation. Cunningham, 423 F. 2d at 1384-85 (holding that a civilian Air Force employee's resignation was involuntary, where, two weeks prior to the effective date of the employee's resignation, the Air Force denied her request to withdraw her resignation, unilaterally deciding that it did not consider the withdrawal of the resignation to the mutual advantage of the employee and the Air Force). "The court's power to review a military department's decision is limited to determining whether the action was improper because it was `arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation or mandatory published procedure' of a substantive nature by which plaintiff has been severely prejudiced.'" Gallucci v. United States, 41 Fed. Cl. 631, 642 (Fed.Cl. 1998) (quoting McIntyre, 30 Fed. Cl. at 213).

  In the present case, Plaintiff claims that the Navy's refusal to accept his withdrawal of the resignation was arbitrary and capricious. Plaintiff filed his request for withdrawal prior to the effective date of his resignation; however, the Navy, unlike the defendant in Cunningham, ordered Plaintiff's resignation order held in abeyance pending the outcome of the DOD IG's investigation into Veitch's reprisal complaint. See 423 F. 2d at 1384-85. Only after the DOD IG had completed its investigation, finding that Plaintiff's "disciplinary problems . . . resulted from his own misconduct" and that his allegations of reprisal were unsubstantiated, was Plaintiff finally separated. See Gott Dep. at 20-22, Ex. 1. Thus, there was a discernible exercise of discretion by the Navy to suspend Plaintiff's separation awaiting the outcome of DOD IG's investigation.

  Plaintiff, however, claims that the conclusions of the DOD IG's investigation into his allegations of religious repression and prejudice were superficial, allegedly omitting Plaintiff's allegations of religious repression and prejudice; "not interviewing identified witnesses; not addressing the trivial and unexamined nature of the charges brought against plaintiff, or even if there were a basis in fact or in law for the charges." First Am. Compl. ¶ 34. It should be noted that the DOD IG's investigation did not specifically concern the voluntariness of Plaintiff's resignation. Cf. Cunningham, 423 F. 2d at 1382-85 (finding that in considering the plaintiff `s request for a grievance hearing to determine the voluntariness of her resignation, the grievance committee conducted an insufficient investigation into the plaintiff's resignation).*fn10 The DOD IG conducted the investigation under 10 U.S.C. § 1034,*fn11 into Plaintiff's allegations that in reprisal for making certain protected communications, he was relieved of his duties as a Navy chaplain and assigned duties at the Family Service Center. See Letter from IG to Veitch, May 23, 2000, DOD Investigation. The DOD IG found that responsible officials did not retaliate against Rev. Veitch for making protected communications. Id. The DOD IG investigator interviewed Rev. Veitch, identified relevant personnel actions, interviewed "responsible military officers" for each personnel action, and interviewed relevant witnesses identified by Plaintiff. The investigation did not attempt to determine if the e-mails that Chaplain Veitch sent to Captain Buchmiller were sufficiently disrespectful to warrant Captain's Mast or court-martial because Captain Coyne, as Commanding Officer, "was the one to make that decision." Id. at 22 n. 15. Even though the investigator found that it was due to Plaintiff's EEO Complaint that Captain Coyne decided to look at Chaplain Veitch's competency to be a military chaplain, the reprisal charges were not supported because by that time Captain Coyne had issued Rev. Veitch an adverse fitness report and had received the EEO Complaint investigation report*fn12 indicating that the complaint was unsubstantiated and possibly frivolous. Id. at 23. The DOD IG noted that given the tone of Rev. Veitch's e-mails to Captain Buchmiller, it was possible that Captain Coyne realized that he needed to look more closely at Chaplain Veitch's demeanor. Id.

  Importantly, Plaintiff did not demonstrate how the DOD IG's findings were contrary to law. While the scope of the DOD IG investigation was limited as mandated by the relevant statute, the DOD IG investigation was not arbitrary or capricious, and its conclusions will not be upset by this court.*fn13 In sum, Plaintiff had a reasonable alternative to resignation — to appear before the courtmartial and raise his defenses against the charge of disrespect. Plaintiff was also offered an opportunity to resolve the disrespect charge through the non-judicial Captain's Mast. Plaintiff has not sufficiently established that he resigned because of Defendant's coercive actions, illegal actions, or an intolerable work environment. See, e.g., McIntyre, 30 Fed. Cl. at 211.

  III. PLAINTIFF'S REMAINING CLAIMS

  Defendants argue that because Plaintiff has voluntarily resigned from the Navy and is no longer subject to the alleged unlawful practices of the Navy Chaplain Corps, Plaintiff lacks standing to seek declaratory and injunctive relief to challenge the Navy's activities. Federal courts are limited to issuing decisions that resolve an actual "case or controversy." See U.S. CONST. art. III, § 2. Standing is one of the "essential" elements of the "case or controversy" requirement. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992) (The plaintiff bears the burden of establishing standing.). In order to establish standing, Plaintiff must demonstrate (1) an "injury in fact," which requires Plaintiff to show "an invasion of a legally protected interest that is `(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,' . . . (2) a causal relationship between the injury and the challenged conduct, . . . [i.e.] the injury `fairly can be traced to the challenged action of the defendant,' and has not resulted `from the independent action of some third party not before the court,' . . . and (3) a likelihood that the injury will be redressed by a favorable decision." Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663-65, 113 S. Ct. 2297, 2301-02 (1993) (internal citations omitted). Importantly, a plaintiff seeking prospective relief, such as declaratory or injunctive relief in this case, must show more than a "past injury"; he must demonstrate that he is "realistically threatened by a repetition" of the alleged violation in the future. See City of Los Angeles v. Lyons, 461 U.S. 95, 109, 124, 103 S. Ct. 1660, 1669, 1676 (1983).

  In this action, Plaintiff seeks declaratory and injunctive relief. See First Am. Compl. at 27-29. Plaintiff asks this court, inter alia, to declare that the Navy illegally discharged him and "[b]urdened, suppressed and interfered with plaintiff's religious beliefs and expression of those beliefs in violation of the Constitution, [the] RFRA, 10 U.S.C. § 6031, the Civil Rights Act and other federal laws" and that the court order "the Navy to take immediate and permanent steps to end and to remedy the Navy's prejudice and bias against evangelical chaplains and evangelical faith groups in general and at Naples in particular." First Am. Compl. at 28. However, Plaintiff is no longer in the Navy because of his voluntary resignation and is not facing any "real and immediate" injury "as the result of the challenged official conduct." See, e.g., Lyons, 461 U.S. at 102. The District of Columbia Circuit has held that even where a plaintiff voluntarily chose to remove himself from active status in the Navy, the justiciability of his claimed constitutional violations that preceded his decision to retire was not affected. See Emory v. Sec'y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987) (holding that the district court could not dismiss the plaintiff's claim for lack of subject matter jurisdiction).*fn14 The court of appeals explained that even though the district court lacked the authority to order that the plaintiff, a retired naval reserve medical corps captain, be promoted retroactively to a rank he sought, the district court had jurisdiction to consider the plaintiff's constitutional claims, noting that the district court had the power to fashion some relief if it determined that the plaintiff's claim was meritorious. Id. at 294.

  However, in Taylor v. Fed. Deposit Insurance Corp., the District of Columbia Circuit held that a finding against a claim of constructive discharge necessarily denies a plaintiff the element of causation required to establish his standing to seek reinstatement based on his First Amendment claim, and the plaintiff's voluntary resignation moots his request for a permanent injunction against future retaliation by eliminating the possibility of future harm and the utility of the injunction. 132 F. 3d at 767-68. The facts in this case are closer to those in Taylor than in Emory. Plaintiff here lacks standing to seek reinstatement as a remedy because his injury, his separation from the service, was not caused by the Navy. See Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324 (1984) (stating that to establish standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief."). Even had the Navy violated Plaintiff's First Amendment or equal protection rights, the court can not decide this issue as Plaintiff has no standing because of his own action. Cf. Taylor, 132 F. 3d at 767 ("In requesting reinstatement, [plaintiffs] seek a remedy for injury that is in large part self-inflicted. This is true whether we treat the defect as a matter of standing or the merits."). Because Plaintiff left the Navy on his own accord, the court lacks jurisdiction over the remaining claims in this case. CONCLUSION

  Because Plaintiff did not meet his burden of rebutting the presumption of voluntariness of his resignation in this case and did not show any material dispute as to his claim of constructive discharge, the court lacks jurisdiction over his remaining claims based on his service in the military.

  Accordingly, it is hereby

  ORDERED that Defendants' motion for summary judgment is GRANTED.

  It is further

  ORDERED that Plaintiff's cross-motion for summary judgment is DENIED.

  A separate Order accompanies this Memorandum Opinion.


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