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VEITCH v. ENGLAND

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 ...


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