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Budik v. United States

United States District Court, District of Columbia

March 7, 2013

EDITH M. BUDIK, Plaintiff,
UNITED STATES, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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EDITH M. BUDIK, MD (1:11-cv-01268), Plaintiff, Pro se, APO, AE.

For UNITED STATES OF AMERICA (1:11-cv-01268), Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC; Oliver W. McDaniel, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

For MICHAEL B. DONLEY, Secretary (in case 11-cv-1865 RBW) (1:11-cv-01268), Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC.

EDITH M. BUDIK, MD (1:11-cv-01865), Plaintiff, Pro se, APO, AE.

For MICHAEL B. DONLEY, Secretary (1:11-cv-01865), Defendant: John J. Gowel, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Civil Division, Washington, DC; Oliver W. McDaniel, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.


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REGGIE B. WALTON, United States District Judge.

This case, in which the pro se plaintiff, Edith Budik, filed a complaint against the defendants, the United States and the Secretary of the United States Department of the Air Force, alleging violations of certain army regulations, the Privacy Act, 5 U.S.C. § 552a (2010), the Fifth and Fourteenth Amendments to the Constitution of the United States, two statutes governing the treatment of various military records, 10 U.S.C. § 1102 (2012) and 10 U.S.C. § 1552 (2008), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), is currently before the Court on the Defendants' Amended Motion to Dismiss (" Defs.' Mot." ). For the reasons explained below, the defendants' motion will be granted. [1]


A. The Plaintiff's Factual Allegations[2]

1. The Plaintiff's Tenure at the Walter Reed Army Medical Center

The plaintiff is a board-certified " diagnostic radiolog[ist] with prior 23-year active and reserve service as a general diagnostic radiologist with the United States Army." 2011 Compl. ¶ 2. Among other hospital positions, she " worked as a staff [r]adiologist at Walter Reed Army Medical Center" (" Walter Reed" ) from April 6, 2007 until November 4, 2007. Second Am. Compl. ¶ 1. Shortly before the end of the plaintiff's tour of duty at Walter Reed, Colonel (" Col." ) Michael Brazaitis, the Chief of Radiology at Walter Reed, " completed a rating of [the p]laintiff's clinical performance dated [November 1, 2007]" using a military performance assessment form for medical personnel called a DA Form 5374. Id. ¶ 11. In the " remarks" section of the DA Form 5374, Col. Brazaitis wrote the following:

A peer review audit was performed encompassing one week of Neuroradiology cases performed by the provider. Significant discrepancies were identified in 4 of the 53 cases performed by the provider (7.5%). The provider's expertise is in Pediatric Neuroradiology. The cases evaluated reflect the usual workload performed at [Walter Reed], which is predominantly adult and trauma Neuroradiology. If the provider practices outside of her area of expertise, supervision should be provided until such time as

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performance is deemed acceptable for the case mix at that institution.


In March 2008, the plaintiff " filed a complaint with the Inspector General at [Walter Reed] for lack of substantiation regarding [Col. Brazaitis's] remarks," alleging tat the remarks " constitute[d] an adverse privileging action, [and also did not] afford[] [the p]laintiff due process." Id. ¶ 13. The Walter Reed Inspector General's Office responded to the complaint in a July 17, 2008 letter to the plaintiff. Id. ¶ 14; First Am. Compl., Attachment (" Attach." ) 3 (July 17, 2008 Letter). The letter related the chronology and findings of the investigation conducted by the Walter Reed Inspector General's Office and concluded that " [b]ased on the information gathered during this inquiry, [the plaintiff was] afforded due process during [her] initial credentialing year at [Walter Reed]." First Am. Compl., Attach. 3 (July 17, 2008 Letter). The letter additionally stated that further requests for information " should be directed to the Department of the Army Inspector General . . . Records Release Office . . . under the Freedom of Information A[ct]." Id.

2. The Plaintiff's Application for Privileges at Malcolm Grow Medical Center

The plaintiff applied for a " civilian position as a contract, board-certified general diagnostic radiologist at Malcolm Grow Medical Center" (" Malcolm Grow" ) at Andrews Air Force Base on August 13, 2008, through Malcolm Grow's " contracting agency[,] Sterling Medical." 2011 Compl. ¶ 9. At the beginning of the process, Sterling Medical requested that the plaintiff " sign an 'Agreement for Service' 'to reserve the position' at" Malcolm Grow. Id. ¶ 10.

As part of the plaintiff's application, the plaintiff was required to attend a " site visit" at Malcolm Grow, even though such " visits [were] prohibited" and " only telephonic interviews were authorized." 2011 Compl. ¶ 11. The plaintiff nonetheless attended the visit, and " [m]ost of the time spent during the interview focused on procedures, policies and practices" at Malcolm Grow. Id. ¶ 13. At least part of the visit included " a brief discussion about mammography" for which the plaintiff required a re-certification and which the defendant stated she " could complete . . . on the job." Id. It was during the site visit that the " [d]efendant learned of [the p]laintiff's race, color, sex, and age." Id. ¶ 11.

Malcolm Grow subsequently obtained additional information about the plaintiff and her qualifications from Walter Reed, as well as from another military hospital at which the plaintiff had worked, Landstuhl Regional Medical Center (" Landstuhl Regional" ). Id. ¶ 17 (identified in the 2011 Complaint as the " LMRC" ). The information was obtained through " collegial channels," as opposed to having been acquired from Sterling Medical. Id. Although the DA Form 5374 that Malcolm Grow received from Landstuhl Regional, which was completed by Lieutenant Colonel (" Lt. Col." ) Ricanthony Ashley, " contained a derogatory statement," the defendants also had knowledge of another DA Form 5374 completed by Lt. Col. Ashley that was identical to the first form with the exception that it did not contain the derogatory statement. Id. ¶ 19. The defendants " questioned why . . . seemingly conflicting references" would be submitted but " did not act on it," even after being informed " that the derogatory statement was forged." [3] Id. ¶ 20.

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Malcolm Grow also obtained the uncomplimentary DA Form 5374 from Walter Reed that had been completed by Col. Brazaitis. Id. ¶ ¶ 21-23. In addition, Malcolm Grow obtained another " reference from [Walter Reed]," which contained " [n]o derogatory information whatsoever." Id. ¶ 24. No one at Malcolm Grow questioned the " conflicting references." Id.

While the plaintiff's application was pending, Malcolm Grow received a telephone call from Col. Les Folio, who provided " a negative reference" regarding the plaintiff. Id. ¶ 25. According to the plaintiff, Col. Folio " did not have the requisite personal or professional contact with [the p]laintiff to assess [her performance]." Id. ¶ 26.

The plaintiff was notified that she had been denied privileges to practice at Malcolm Grow on October 8, 2008. Id. ¶ 27. The reasons cited included the unfavorable performance assessments received from Walter Reed and Landstuhl Regional, as well as the plaintiff's need to re-qualify in mammography. Id. ¶ 28. The plaintiff subsequently filed a complaint with the Equal Employment Opportunity Commission (" EEOC" ), claiming unlawful discrimination. Id., Attach. 2 (EEOC Judgment) at 2. The EEOC found that the plaintiff " failed to establish by a preponderance of the evidence that any or all of the Claims cited [in the plaintiff's EEOC complaint] amount to a prima facie case of unlawful discrimination in the selection process based on her race, color, or sex." Id., Attach. 2 (EEOC Judgment) at 10.

3. The Plaintiff's Continued Attempts To Amend her Military Records

In January 2009, the plaintiff met with the Commander at Walter Reed, Col. Norvell V. Coots, MD, to discuss both Col. Brazaitis's remarks on her performance assessment form and the disclosure of that form to Malcolm Grow. Second Am. Compl. ¶ 15. Col. Coots indicated " that he would conduct a 15-6 investigation" [4] to review the initial investigation conducted by the Inspector General at Walter Reed. Id. ¶ 15. After reviewing the initial investigation, but without performing the 15-6 investigation, id. ¶ 16, Col. Coots informed the plaintiff in an April 23, 2009 letter that he was " satisfied with the validity of the [Inspector General's] investigation and with its results. Therefore, there will be no need to initiate a new investigation," First Am. Compl., Attach. 5 (April 23, 2009 Letter).

Through counsel, the plaintiff challenged Col. Coots's determination that a new investigation was not warranted. [5] First Am. Compl., Attachs. 6a-6c (June 2, 2009, June 24, 2009 and July 13, 2009 Letters). Col. Scott F. Young, the Center Judge Advocate at Walter Reed, stated that " [i]f [the plaintiff] believes that an error or injustice exist[ed]" in her records, " she may petition the Army Board for Correction of Military Records for relief . . . within 3 years after [the] alleged error or injustice [was] discovered

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or reasonably should have been discovered." First Am. Compl., Attach. 6b (June 24, 2009 Letter).

The plaintiff had already filed a petition with the Army Board for Correction of Military Records (" Army Board" ) in a letter dated June 5, 2009. [6] 2011 Compl. ¶ 30; First Am. Compl., Attach. 7 (June 5, 2009 Letter). The June 5, 2009 letter stated that the " performance evaluation written by Col. Brazaitis . . . ha[d] adversely affected [her] ability to obtain" a position. First Am. Compl., Attach. 7 (June 5, 2009 Letter). She alleged that the " remarks in section . . . 14" of the performance assessment were " unsubstantiated," " restrictive," and inconsistent with other performance evaluations completed during the same time period. Id. The plaintiff's request for correction of her records was denied on August 4, 2009. Second Am. Compl. ¶ 17; First Am. Compl., Ex. 8 (August 4, 2009 Letter).

Shortly thereafter, on August 12, 2009, the plaintiff filed a judicial complaint against the Department of the Army challenging the Department's failure to provide her with records that she had requested pursuant to the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 (2006). Budik v. Dep't of Army, 742 F.Supp.2d 20, 23-24 (D.D.C. 2010). Another member of this Court found that, among other documents, the Department of the Army was required to produce to the plaintiff eight documents from Walter Reed, id. at 28, 37, among which were documents from the plaintiff's Provider Credentials File, Second Am. Compl. ¶ 19. The plaintiff subsequently received a copy of her Provider Credentials File pursuant to the Order issued in Budik, 742 F.Supp.2d at 40. Id. ¶ 19; First Am. Compl., Attach. 10 (December 7, 2010 Letter). However, the " peer review document," i.e., Col. Brazaitis's performance assessment of Col. Budik, was " not contained in the file." Second Am. Compl. ¶ 19.

On August 4, 2010, the plaintiff filed a request for reconsideration from the Army Board of its August 4, 2009 denial of her initial request to amend her military record. Second Am. Compl. ¶ 18. The request for reconsideration was denied on October 27, 2011. Id.

B. The Current Lawsuits

The plaintiff subsequently filed two lawsuits. First, she filed a lawsuit relating to the Walter Reed records. The matter was originally filed against Col. Brazaitis in the Circuit Court for Howard County, Maryland, before being removed to the United States District Court for the District of Maryland. Notice of Removal at 1-2, No. 11-1268, ECF No. 1. [7] The District of Maryland granted the defendants' motion to substitute the United States as the appropriate defendant, November 20, 2009 Order at 1, No. 11-cv-1268, ...

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