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Reed v. Department of the Navy

United States District Court, District of Columbia

December 18, 2012

Timothy M. REED, Plaintiff,

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[Copyrighted Material Omitted]

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David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, for Plaintiff.

Javier M. Guzman, John G. Interrante, U.S. Attorney's Office, Washington, DC, for Defendant.



Plaintiff Timothy Reed has sued the Department of the Navy under the Privacy Act of 1974 (" Privacy Act" ), 5 U.S.C. § 552a et seq. He alleges that defendant improperly disclosed confidential records pertaining to him, which resulted in his constructive discharge by his civilian employer, the Charleston Police Department (" CPD" ). At trial, defendant presented a variety of defenses in the alternative: that the disclosures were not covered by the Privacy Act; that the disclosures were justified by certain exceptions to the Act's general prohibition; that any prohibited disclosures were not willful or intentional; that plaintiff was not constructively discharged; and/or that his discharge was not caused by the Navy's disclosures.

The case was tried before this Court on November 5-7, 2012. The Court heard live testimony from six witnesses, including five Navy officers and plaintiff. In addition, the parties entered into evidence by stipulation the deposition testimony of six employees of the CPD. The parties also introduced exhibits, including the set of documents that the parties stipulated were released by the Navy to the CPD in April 2009. Based on the evidence at trial, the applicable case law, and the entire record,

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the Court makes the following Findings of Fact and Conclusions of Law.


A. Reed's Background

1. Plaintiff Timothy Reed was enlisted in the United States Navy from November 1990 through January 1998, when he was honorably discharged. From March 1998 through May 18, 2009, he served in the Navy Reserve. His service included deployments to Guantánamo Bay, Cuba, Crete, Kuwait, and Iraq. Plaintiff was simultaneously employed as a police officer by the CPD from the spring of 2000 through May 2009. (Trial Transcript from November 6, 2012 (" 11/6/12 Tr." ) at 42-47.)

B. January/February 2009

2. On December 31, 2008, plaintiff was mobilized to the Expeditionary Combat Readiness Center (" ECRC" ) in anticipation of being deployed to Iraq as part of a detainee guard unit. (Def. Ex. 4 at Bates Number (" BN" ) 100; 11/5/12 Tr. at 64-65; 11/6/12 Tr. at 52, 122-123.) While in specialized training at Ft. Lewis, Washington, plaintiff allegedly engaged in various acts of misconduct in the period January 5 through January 19, 2009. (Pl. Ex. 4 at BN 402090-91; Def. Ex. 3 at BN 002-005.) Specifically, plaintiff was alleged to have pointed an M16 rifle at two other trainees while ordering them to the ground; pointed a knife at another trainee and threatened to cut him; disobeyed an order to wear Navy-issued boots; made a derogatory statement about a female officer; and made inappropriate comments about using force against Iraqis. (Pl. Ex. 4 at BN 402090-91; Def. Ex. 3 at BN 002-005.)

3. On January 23, 2009, Senior Chief Prezant, a Navy Liaison Officer at Ft. Lewis, informed ECRC about the allegations. (Def. Ex. 3 at BN 032.) On January 26, 2009, plaintiff was given an " emergency command directed evaluation" or mental health exam. ( Id. at BN 043-044.) On January 27, 2009, a preliminary inquiry was completed at Ft. Lewis. ( Id. at BN 039-042.) On the same date, Navy Lieutenant Commander (" LCDR" ) Aimee Cooper, a Staff Judge Advocate (" JAG" ) assigned to the ECRC Command, wrote a memo recommending that plaintiff be placed in pretrial confinement because he was accused of offenses triable by court-martial and because it was reasonable to believe that he might continue his alleged pattern of criminal misconduct if left at liberty. ( Id. at BN 032-036.)

4. Plaintiff left several phone messages for Lieutenant Kevin Boyd, his team commander at the CPD, in January 2009. When they spoke, plaintiff told Boyd that he had " some training issues" without providing specific details. (Testimony of Lieutenant Kevin Boyd (" Boyd Test." ), Joint Ex. 1, at BN 004-006.) Boyd believed, based on his experience, that " if [an officer] is away from the Department and they're calling you, it's probably not a good thing." ( Id. at BN 042.) Boyd notified Captain Tillman, his supervisor, about the call. No action was taken by the CPD at that time. ( Id. at BN 006.) This was the first time that anyone at the CPD learned of any issues arising during Reed's deployment.

5. On January 27, 2009, plaintiff was transported back to ECRC in Norfolk, Virginia. (11/6/12 Tr. at 124-125.) On January 30, 2009, the Navy conducted a Disciplinary Review Board (" DRB" ) hearing, presided over by Command Master Chief David Carter. (11/5/12 Tr. at 21-22.) As the senior enlisted advisor to Captain Jeffrey McKenzie, the Commanding Officer of the ECRC, Carter was responsible for all aspects of the disciplinary proceeding, including the investigation. ( Id. at 52-53.)

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6. During the DRB hearing, plaintiff indicated that he was a police officer with the CPD. ( Id. at 23.) Because the DRB members were skeptical of plaintiff's claim, Carter contacted the CPD after the hearing in order to confirm plaintiff's civilian employment. (11/5/12 Tr. at 59-60.) Carter's initial call was picked up by CPD Sergeant Robert F. Gamard. (Testimony of Sgt. Robert F. Gamard (" Gamard Test." ), Joint Ex. 2, at BN 009-012.) Carter asked Gamard if plaintiff worked for the CPD. ( Id. at BN 010.) Gamard explained to Carter how to verify plaintiff's employment officially, but also informed him that plaintiff worked on CPD Team 1 as a police officer. ( Id. ) Carter then told Gamard that plaintiff had been involved in a " training incident" that involved pointing a firearm at other trainees, and that there were allegations that he had made ethnic and racial slurs as well. ( Id. ) According to Gamard, Carter asked him if he was aware of plaintiff being involved in any similar incidents at the CPD. ( Id. at BN 011.) Gamard responded that plaintiff " didn't work directly for [him], and it was not something that [he] would have known" but he " directed him in the direction that he would need to go to find that information out." ( Id. ) Carter could not recall this conversation. (11/5/12 Tr. at 27-28, 93.) The Court therefore credits Gamard's recollection.

7. Gamard gave Boyd the message to return Carter's call. (Gamard Test. at BN 012.) When Boyd called, Carter asked if plaintiff worked for the CPD as a police officer, which Boyd confirmed. (Boyd Test. at BN 006-007.) Carter then said that plaintiff was involved in " some training issues" or " a situation." ( Id. at BN 007.) Boyd cut Carter off and suggested a conference call with his supervisor, Captain Gary Tillman, to discuss the matter in full. ( Id. )

8. A conference call took place between Boyd and Tillman from the CPD (with Gamard listening in briefly), and CMC Carter and LCDR Cooper from the Navy. (Boyd Test. at BN 008-012; Gamard Test. at BN 014-015.) Carter had received Privacy Act training (11/5/12 Tr. at 48-49), and Cooper, an attorney, was the FOIA and Privacy Act coordinator for ECRC at the time. ( Id. at 122-23.) Carter asked Cooper to participate in the call so that " if there's anything that needs to be addressed legally, she, being the expert, would be able to address it." ( Id. at 94.) The conference call lasted about 5 minutes. (Boyd Test. at BN 011.) Carter again repeated what he told Gamard, i.e., that the plaintiff was involved in a training scenario that involved pointing a weapon and making derogatory statements or slurs. ( Id. at BN 012.)

9. After the conference call, Tillman and Boyd informed CPD Attorney Mark Bourdon and CPD Chief Gregory Mullen about the allegations against plaintiff. (Testimony of Mark Bourdon (" Bourdon Test." ), Joint Ex. 4, at BN 010-011.) Chief Mullen indicated that he wanted to wait until the Navy concluded its investigation before taking any action. ( Id. at BN 010.)

10. Plaintiff called Gamard about a week after Carter had initially called. (Gamard Test. at BN 012-013.) Plaintiff asked questions about what Carter had said to Gamard. ( Id. at BN 013.) In addition, plaintiff asked Gamard if he would write a character reference, which Gamard did not feel comfortable doing. ( Id. ) Plaintiff also called Boyd after the conference call and asked him for a character reference. (Boyd Test. at BN 044.)

11. On February 2, 2009, plaintiff called Mark Bourdon, who, in addition to being an attorney for the CPD, was a JAG Officer with the Marine Corps Reserve.

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(Bourdon Test. at BN 007,012-013.) Plaintiff told Bourdon that " all he [was] accused of doing was violat[ing] [operational security]" and that " the allegations against him would not hold water." ( Id. at BN 013-014.) Bourdon was already aware that there were alleged ...

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