The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the motion of the defendant, the
United States Department of Education, for judgment on the pleadings
or, in the alternative, for summary judgment. Upon consideration of
the parties' arguments, the relevant legal authorities, and the entire
record in this case, the Court concludes that plaintiff John Gard has
failed to identify any genuine issues of material fact that would
prevent the pretrial entry of judgment for the defendant.*fn1
Consequently, the Court will grant the defendant's motion and
enter judgment for the Department of Education.
The following summary of facts is based on (1) statements in the defendant's Statement of Material Facts Not in Genuine Dispute that were not contested by the plaintiff, and (2) documents whose authenticity has not been disputed by the plaintiff:
Plaintiff John Gard is now and was during all relevant periods employed as an accountant by the defendant Department of Education ("DOE"). DSMF ¶ 1. In November 1997 and May 1998, Mr. Gard contacted various federal government officials, including employees of DOE's Office of the Inspector General, and alleged that DOE's flawed and inadequate accounting systems and security were facilitating financial mismanagement. MSJ, Ex. 26 at 5; Compl. ¶ 7. At least some of Mr. Gard's allegations concerning financial mismanagement were later substantiated by the United States Office of Special Counsel. DSMF ¶ 15.
On May 8, 1998, a co-worker of Mr. Gard emailed their joint supervisor, Janice Steinbrueck, and claimed that Mr. Gard had become "'irate'" with him and accused him of tampering with Mr. Gard's computer. DSMF ¶ 24. On June 17, 1998, Ms. Steinbrueck wrote a memorandum for inclusion in Mr. Gard's personnel file. See id. ¶ 45; MSJ, Ex. 12 at 1. She claimed in that memorandum that on June 16, 1998, she and two other co-workers had gone to Mr. Gard's office to discuss the operation of DOE's accounting software. MSJ, Ex. 12 at 1. According to Ms. Steinbrueck, Mr. Gard quickly became "hostile" during this meeting and began "yelling" and displaying "extreme anger." Id. at 1-2. Ms. Steinbrueck claimed that she was "very concerned for the welfare (physical safety) of those working closely with John, including myself." Id. at 2.
On June 17, 1998, Ms. Steinbrueck and a co-worker, Maureen Smith, met with Mr. Gard in Ms. Smith's office to warn him that yelling at colleagues at work was inappropriate. DSMF ¶ 65. The next day, Ms. Steinbrueck prepared a memorandum for Mr. Gard's personnel file in which she described her recollection of the previous day's meeting with Mr. Gard. See DSMF ¶ 65; Ex. 2 at Bates 1553. According to that memorandum, Mr. Gard became "violently angry" after Ms. Steinbrueck told him that she found his behavior of the previous day "unacceptable." Id. Ms. Steinbrueck claimed that Mr. Gard had denied that he had yelled the day before and then had asserted that Ms. Steinbrueck's admonishment of him was in reality an act of "reprisal" for his whistle-blowing. Id.
Also on on June 17, 1998, another co-worker, Jeanne Johnson, sent an email to Ms. Steinbrueck in which she described an incident that had just occurred. See MSJ, Ex. 31, Attach. 4; DSMF ¶¶ 49-50. She alleged that Mr. Gard had "stomped" into her office, "so angry that his face was trembling," and accused her of improperly behaving as a "management representative" even though she was officially a representative of her union. Id. He then "stormed away." Id.
On June 18, 1998, another co-worker of Mr. Gard, Ora Alger, submitted to supervisors a "memo to file" in which she alleged that she "fear[ed] and believ[ed] that [her] co-worker John Gard [was] unbalanced in his views and perceptions of [her] and towards [her]" because he repeatedly accused her of "using [her] position in the union to enhance [her] career, . . . and as a tool against him personally." MSJ, Ex. 32, Attachment 3 at 1. She claimed to fear that Mr. Gard was a threat to her physical safety. Id. She then alleged that, shortly after the August 1995 bombing of the Federal Building in Oklahoma City, Mr. Gard had said of the bombing, "[T]hat was child's play, it was nothing compared to what I could do. . . . I could easily take out seven blocks around here, and no one would know it. . . . I used to be a demolition expert for the Army in Nam and they trained me well." Id. According to Ms. Alger, she had decided to report this encounter with Mr. Gard because, after hearing of Mr. Gard's June 16, 1998 confrontation with co-workers, she was becoming "fearful because his temper and accusations are intensifying." Id. at 2. She further reported that "[i]t has been rumored that John has a mental disorder cause[d] by his tour in Viet Nam," and suggested that he might need assistance with that condition. Id.
On June 19, 1998, Ms. Johnson wrote an email to her supervisors and to human resources personnel in which she expressed "concern for the welfare of Carolyn Ashby," a co-worker. DSMF ¶ 52; MSJ, Ex. 31, Attach. 5. She stated that Ms. Ashby had witnessed the June 17 confrontation between Ms. Johnson and Mr. Gard and "was very frightened" because "she and [Mr. Gard] ha[d] a long history of confrontational problems that were never addressed by management. [Ms. Ashby] said that she . . . ha[d] been crying and upset" since the June 17 incident. Id.
During the time that Mr. Gard's co-workers were describing his behavior in these various emails and memoranda, it was well known in their office that Mr. Gard had filed a whistle-blower complaint with the Office of the Inspector General and the Office of Special Counsel in May 1998. See DSMF ¶¶ 37-38, 41. Mr. Gard made clear to DOE officials that he believed himself to be a victim of retaliation. In an email to various DOE officials written on June 17, 1998, Mr. Gard asserted that his confrontation with Ms. Steinbrueck and two other employees the previous day had occurred because Ms. Steinbrueck had come to his office "to insult and belittle" him. MSJ, Ex. 35. He claimed that Ms. Steinbrueck's stated reason for coming to his office - to assist him with a problem he said he had found in their accounting software - was spurious, because "[t]here was absolutely no need for these three employees to come to [his] office with the purpose of telling" him how to use the software; he knew "how to accomplish" all of the relevant "functions." He characterized the entry of Ms. Steinbrueck and the other employees into his office as an act of "reprisal" and declared that he did "not have to and [was] not going to put up with" it. Id. Also on June 17, 1998, Mr. Gard sent an email to the Secretary and a Deputy Secretary of DOE in which he alleged that he had been called into a meeting that day with Ms. Steinbrueck and Maureen Smith. He stated that he "felt during the meeting that Maureen Smith's statements were designed to intimidate and threaten" him, and that "[a]ccordingly," the meeting "constitute[d] an additional instance of reprisal." MSJ, Ex. 36 at 1. According to Mr. Gard, Ms. Steinbrueck or Ms. Smith told him that he "was unqualified, that [he] had not demonstrated any leadership ability or the ability to get along with people, that [he] was not qualified to be a team leader and that [he] was a threat." Id. Mr. Gard claimed that he "was being warned that if [he] continued to provide . . . information to and/or assist the Office of Inspector General[,] . . . management would take adverse action against me." Id. at 2.
On June 19, 1998, several DOE employees, including "representatives from the Office of Management . . . and the Office of General Counsel" met to discuss the emails circulated by Mr. Gard and his co-workers regarding the confrontations that had occurred over the preceding few days. DSMF ¶¶ 74-75. One of the meeting's attendees reported that DOE's Chief Financial and Chief Information Officer, Donald Rappaport, had been heard making a comment concerning Mr. Gard and a gun. Id. ¶ 76. The meeting participants decided that DOE's Office of General Counsel and some of its human resources personnel should investigate the situation concerning Mr. Gard further. Id.
After that meeting, Paula Lelansky, a DOE employee who had attended the meeting and who specialized in various human resources issues, reviewed Mr. Gard's personnel file. DSMF ¶¶ 71, 74, 79. She then contacted Dr. Neal Presant, a doctor under contract with DOE as the Department's "medical review officer." Id. ¶ 79. She faxed him a memorandum in which Jeanne Johnson described the June 16, 1998 confrontation between herself, Jan Steinbrueck, and another co-worker on one side, and Mr. Gard on the other. Id. ¶ 80. In that memorandum Ms. Johnson claimed that Mr. Gard had "shout[ed]" at them, accused her of usurping a team leader position that should have been his, "shak[en] his finger in [her] face," and finally declared that he "'would take care of all of [you].'" MSJ, Ex. 7, Attach. 1 at 1-2. Ms. Johnson expressed concerns over Mr. Gard's "rage" and "irrational, paranoid behavior." Id. at 2.
In addition to that memorandum, Ms. Lelansky also faxed to Dr. Presant a form from Mr. Gard's file that was entitled "Health Benefits Registration Form," which she apparently found suggestive because Mr. Gard wrote "None now" under "Names of family members." See MSJ, Ex. 7, Attach. 2; DSMF ¶¶ 80-81. After reviewing the documents sent to him by Ms. Lelansky, Dr. Presant warned her that Mr. Gard could be a threat to his co-workers and advised that Mr. Gard be "remove[d] . . . from the work place" to protect those who worked with him. DSMF ¶ ¶ 83-84. He suggested that Mr. Gard be barred from the office until "medical documentation" from Mr. Gard's own physician could be reviewed. Id. ¶ 84.
After speaking with Ms. Lelansky, DOE's Chief Financial and Chief Information Officer signed a letter placing Mr. Gard on paid administrative leave on June 19, 1998. DSMF ¶ 90. The letter was sent by Federal Express to Mr. Gard, who was away from work, on the same day, but Mr. Gard did not receive it before reporting to the office for work on June 22, 1998. Id. ¶ 90, 93. Mr. Gard was also formally banned from DOE's buildings; a document saying so was provided to the security guards posted at the buildings' entrances. Id. ¶¶ 91-92.
Mr. Gard reported for work on June 22, 1998, unaware that he had been placed on administrative leave. DSMF ¶ ¶ 93-94. Ms. Lelansky learned of his presence, and a copy of the June 18, 1998 letter placing Mr. Gard on administrative leave was delivered to him in person as he was meeting with employees from the Office of Inspector General regarding his whistle-blower claims. Id. ¶ 96. Federal Protective Services officers then escorted Mr. Gard from the building. Id. ¶ 97.
After Mr. Gard's removal from the workplace, various DOE employees continued to discuss his situation. See DSMF ¶ ¶ 101-06. Mr. Gard's legal counsel communicated with DOE repeatedly regarding his client's work status. Id. ¶¶ 104-09. In October 1998, Danny Harris, Mr. Gard's "second-level" supervisor, invited Mr. Gard to meet with him later that same month to discuss "possible work assignments" for him. Id. ¶ 111. Mr. Harris also requested that Mr. Gard provide certain information about his medical condition, including "[t]he findings of a mental status examination and the results of psychological tests." MSJ, Ex. 37, Attach. 5 at 2. He mentioned an email sent by Mr. Gard to Ms. Steinbrueck on March 18, 1998, in which Mr. Gard claimed that he was about to begin taking a medication "which could have possible adverse side effects . . . inclu[ding] headaches, depression, hypertension, and mood swings." Id. at 1. Stating, "I am concerned that there may be relationship between your medical condition(s) and your behavior in the workplace," Mr. Harris explained that "medical documentation" would "assist us in determining whether or not there is a connection between medication you are taking and the events which took place in June, and whether your medication has been stabilized." Id.
It is not clear from the record whether the medical documentation requested was ever submitted by Mr. Gard. See DSMF ¶¶ 113-15. In any case, Mr. Harris permitted Mr. Gard to return to work on December 21, 1998, id. ¶ 115, and arranged for Mr. Gard to be assigned to a different first-line supervisor. MSJ, Ex. 37, Attach. 6. Even so, Jeanne Johnson continued to complain to her supervisors that Mr. Gard was attempting to intimidate her, this time by peering into her office on his way past her door, DSMF ¶ 119; she found this behavior ominous because "Mr. Gard worked in another section of the floor and had no work-related reason to interact with Ms. Johnson or with other people near her office." Id. Upon learning of Ms. Johnson's complaints, Mr. Gard's new supervisor asked Mr. Gard to stop using the corridor outside Ms. Johnson's office and to "refrain from doing anything that might be construed by Ms. Johnson as harassment." Id. ¶ 120.
As these developments related to Mr. Gard's position at DOE unfolded, Mr. Gard attempted on multiple occasions to demonstrate that his employer was retaliating against him for his whistle-blowing activity. On June 2, 1998, he submitted a whistle-blower complaint with the Office of Special Counsel. DSMF ¶ 13. Less than a month later, on June 30, 1998, he filed another complaint with the Office of Special Counsel, asserting that his placement on administrative leave as of June 19, 1998 was intended to punish him for "cooperating with and providing evidence to the Office of the Inspector General." MSJ, Ex. 22 at 19. He alleged that Federal Protective Services had been used to remove him from a DOE building on June 22, 1998, in order to "make a scene, an example out of me and to intimidate and control the other employees who were starting to cooperate with the OIG." Id. at 19-20. Regarding the confrontations that occurred in the few days preceding his placement on administrative leave, Mr. Gard claimed that he was verbally "attacked" by his co-workers on June 16, 1998, and stated that although he was "not a physical threat to citizens, co-workers, or [him]self, . . . when [he] is attacked, [he] will defend himself." Id. at 13. He described his June 17, 1998 meeting with Janice Steinbrueck and Maureen Smith as "very hot and heated" and added that "[t]he more Maureen Smith tried to intimidate me the more determine[d] I became that I would not be intimidated. I met force with like force." Id. at 16.
The Office of Special Counsel informed Mr. Gard on September 27, 2001 that it had completed its investigation of his retaliation claim and declined to pursue the matter further. See DSMF ¶ 16; MSJ, Ex. 24. Mr. Gard then filed a complaint with the Merit Systems Protection Board ("MSPB"), again alleging reprisal on the basis of his whistle-blowing activity. DSMF ¶ 17. In May 2002, DOE settled Mr. Gard's MSPB complaint by entering into a settlement agreement with him pursuant to which DOE did not admit any wrongdoing, but promised that it would (1) make no attempt to transfer Mr. Gard from his position before January 1, 2003; (2) give Mr. Gard a Quality Step Increase in his salary; and (3) refrain from taking any adverse actions against Mr. Gard in connection with "any incident or circumstance of his employment" that arose and was known to the agency before the effective date of the settlement agreement. See MSJ, Ex. 27 at 2-3. The agreement purported to resolve "all claims" that Mr. Gard had or ...