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Rebecca A. Brunotte v. Martha N. Johnson

September 25, 2012

REBECCA A. BRUNOTTE, PLAINTIFF,
v.
MARTHA N. JOHNSON, ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Plaintiff Rebecca A. Brunotte's motion for partial summary judgment with respect to her first and fourth causes of action and Defendant General Services Administration's ("GSA") cross-motion for summary judgment as to Plaintiff's amended complaint in its entirety.

II. BACKGROUND

From January 27, 2003, until November 26, 2006, GSA employed Plaintiff Rebecca A. Brunotte as the Director of Information Technology ("IT") Operations. On November 3, 2005, Plaintiff contacted the GSA Equal Employment Opportunity ("EEO") office to initiate counseling for a complaint of gender-based discrimination and retaliation. In her EEO complaint, Plaintiff alleged that GSA discriminated against her by giving her a level 2, "partially meets expectations," performance appraisal and retaliated against her by initiating a criminal investigation into alleged discrepancies regarding her requests for reimbursement of travel expenses and compensatory time. The instant case concerns GSA's alleged violations of the Privacy Act, 5 U.S.C. § 552a et seq., stemming from GSA's release of Plaintiff's protected information.

On August 8, 2005, due to issues concerning alleged discrepancies in Plaintiff's requests for travel expense reimbursements, her supervisor, Casey Coleman, filed a complaint with the GSA Office of the Inspector General ("OIG"). Kerry Mannion, OIG Criminal Investigator Special Agent, was assigned the case and investigated the charges against Plaintiff. Following that investigation, OIG referred the case to the U.S. Attorney's Office for the Eastern District of Virginia. Joseph Wheatley, Special Assistant U.S. Attorney for the Eastern District of Virginia, then charged Plaintiff with theft of government property, 18 U.S.C. § 641, and false claims, 18 U.S.C. § 287. As is further discussed below, the criminal charges against Plaintiff were dismissed in June 2006.

On January 4, 2006, the EEO issued a Counselor's Report regarding Plaintiff's November 3, 2005 discrimination and retaliation complaint, which contained, among other things, a summary of Plaintiff's allegations against GSA in her EEO complaint.*fn1 Plaintiff now alleges that, in violation of the Privacy Act, her supervisor, Casey Coleman, disclosed the contents of her EEO Counselor's interview to GSA employees Gary Drugley, John Geist, and Cecelia Brown,*fn2 as well as to Coleman's husband, Steve Bolster.

With respect to the criminal charges pending against Plaintiff regarding her travel expense reimbursement requests, in June 2006, Plaintiff signed a pretrial diversion agreement under which all criminal charges against her were dismissed. OIG, however, maintains that it continued its investigation because the servicing agency (GSA's Chief Information Officer) had not yet made a final disposition of the criminal case against Plaintiff. Not until December 12, 2006, when OIG received the final disposition report closing the case, did OIG formally close the case.

On June 20, 2006, Plaintiff submitted an application for employment to the Government Printing Office ("GPO") for an IT Specialist position. She received a tentative offer for employment on October 5, 2006, which was subject to her successful completion of a Questionnaire for Non-Sensitive Positions (Form SF-85) and a Declaration of Federal Employment (Form OF-306). In the Declaration of Federal Employment application form, questions nine and twelve, which are fully set forth below, pertained to whether Plaintiff had ever been punished criminally or whether she had left any job involuntarily. Plaintiff answered both questions in the negative. As stated, although the criminal case against Plaintiff had been disposed of in June 2006, OIG contends that it continued to investigate Plaintiff until December 2006; and, on October 12, 2006 - after Plaintiff had submitted her completed employment application forms for the GPO position for which she was applying - Casey Coleman sent Plaintiff a letter proposing her removal from GSA.

On October 25, 2006, Plaintiff met with persons at GPO to review her application forms and to complete a drug test. Plaintiff also met with Richard Leeds, her would-be supervisor at GPO, who informed her that her first day of work would be November 26, 2006.*fn3 On November 2, 2006, GPO sent Plaintiff a "Final Appointment Letter" congratulating her on her selection for the position at GPO.*fn4

On November 20, 2006, six days before her effective start date at GPO, Plaintiff and GSA entered into a settlement agreement with respect to her EEO complaint. Under the terms of that agreement, among other things, (1) Plaintiff agreed to resign from her position at GSA effective November 25, 2006; (2) GSA agreed to rescind Plaintiff's "proposed removal action dated October 12, 2006, and that [she] had a clear record while employed at GSA"; (3) GSA agreed to raise Plaintiff's "performance appraisal for the performance period ending September 30, 2005, from a level 2 to a level 3, with no comments by November 25, 2006"; and (4) GSA agreed to provide Plaintiff's prospective employers "only a neutral reference, and shall only state [Plaintiff's] dates of employment with GSA, her job title at the time of her resignation, that she resigned her employment or transferred to another Federal Agency, information about her salary, and her last performance rating." Finally, the settlement agreement provided that, "[i]f [Plaintiff] finds employment with another Federal agency prior to the effective date of her resignation she will transfer to that agency effective November 26, 2006."

GSA OIG Criminal Investigator Mannion subsequently called Nathan Brown, a special agent for the GPO OIG, and told him that he was involved in investigating a criminal case involving Plaintiff and that he had reason to believe her GPO application might have included false statements. On November 21, 2006, after the criminal case against Plaintiff had been disposed of in June 2006 but prior to GSA OIG's alleged formal closing of the case in December 2006, Mannion, from GSA, sent a fax to Brown, at GPO, with Plaintiff's OIG criminal investigation report. Brown then informed his supervisor, Ronald Koch, Assistant Inspector General for Investigations at GPO OIG, about the fax and its contents.

GPO OIG took issue with Plaintiff's responses to questions nine and twelve in her completed Declaration of Federal Employment application form. Question nine asked, "During the last 10 years, have you been convicted, been imprisoned, been on probation, or been on parole?" Plaintiff answered, "No," to that question. Question twelve asked, "During the last 5 years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you disbarred from Federal employment by the Office of Personnel Management or any other Federal Agency?" Plaintiff also answered, "No," to that question. The employment application form also provided that, "if you are selected, before you are appointed you will be asked to update your responses on this form and on other materials submitted during the application process and then to recertify that your answers are true."

On November 28, 2006, when Plaintiff arrived for her first day of work at GPO, Vickie Barber, GPO Director of Human Capital Operations, refused to allow her to begin work and advised her to return to GSA. On November 30, 2006, Barber submitted to GSA a "Request for Preliminary Employment Data" to determine any outstanding issues before allowing Plaintiff to begin her new job at GPO. GSA responded to GPO's request by stating that Plaintiff had a level 2 (rather than level 3) performance review; that, in response to a question regarding whether any unfavorable information regarding Plaintiff's employment at GSA existed, GSA answered, "Don't Know"; and GSA ...


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