Dong v. Smithsonian Inst.

• Decision Date: 31 October 1996
• Docket Number: Civil Action No. 94-628 (GK).
• Citation: 943 F.Supp. 69
• Parties: Margaret DONG, Plaintiff, v. SMITHSONIAN INSTITUTION, Defendant.
• Court: U.S. District Court — District of Columbia

943 F.Supp. 69

Margaret DONG, Plaintiff, v. SMITHSONIAN INSTITUTION, Defendant.

Civil Action No. 94-628 (GK).

United States District Court, District of Columbia.

October 31, 1996.

Joseph V. Kaplan, John P. Mahoney, Passman & Kaplan, Washington, DC, for Plaintiff.

Nancy R. Page, Assistant U.S. Attorney, Washington, DC, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KESSLER, District Judge.

The Plaintiff, Margaret Dong, brings this action against her employer, the Smithsonian Institution, for damages caused by Defendant's alleged breach of its statutory obligations regarding the collection of employment information under the Privacy Act of 1974, 5 U.S.C. § 552a(e)(2) (1994).

I. Findings of Fact

Plaintiff has been employed by the Hirshhorn Museum and Culture Garden since 1985. She began as a clerk-typist and was promoted to assistant registrar for outgoing loans. She is technically classified under the civil service system as a Museum Registration Specialist, and her civil service rating is currently GS-9.

Plaintiff works with individuals and organizations outside the museum to arrange for the loan of objects from the Hirshhorn to curators, directors, and registrars of other museums. Her job entails a wide range of responsibilities, and it appears that Ms. Dong has always performed them well. Over the years, her ratings on performance evaluations have been highly successful and, on occasion, outstanding.

One of Ms. Dong's duties, when appropriate, is to act as a courier for loan objects in transit. During the week of September 13 through 17, 1993, Ms. Dong served as a courier for the painting Circus Horse by Joan Miro, which is owned by the Hirshhorn. Ms. Dong accompanied the painting from Barcelona, Spain, to the Museum of Modern Art in New York City, because she was concerned about the condition of the painting's frame. The shipping company handling the exhibit, sharing that concern, asked Ms. Dong to act as a courier.

Ms. Dong took annual leave for these days, even though she was entitled to take this trip on regular work time. Her airplane ticket, as well as a standard per diem fee, was provided by the Museum of Modern Art. Nothing in the record suggests that she did anything but serve as a courier on this trip. Her trip was not for vacation or pleasure.

Ms. Dong did not obtain the approval of the director of the Hirshhorn for this courier trip. Indeed, she told no one at the Hirshhorn that she would be taking the trip. There is no question that the failure to obtain the director's approval was a violation of museum procedures and regulations. Ms. Dong was ultimately suspended for five days for the violation of those museum procedures. That suspension is not an issue in this lawsuit.

Ms. Dong's failure to obtain the director's approval was clearly intentional on her part. Serving as a courier was a standard part of her job. She had never had a request to act as a courier turned down in the past, and she had no reason to believe that this request would be denied.

The reason she did not follow prescribed procedures was an unusual one. According to her testimony, the reason that she did not seek approval for the trip was related to problems she was having with a co-worker. Apparently, the co-worker caused problems when Ms. Dong was away on couriering duty, but not when she was simply out of the office on annual leave. Therefore, Ms. Dong chose to avoid problems with that co-worker by simply taking annual leave and not letting anyone know that she was acting as a courier for the Miro painting.

During the week of October 18, 1993, the administrator of the Hirshhorn, Ms. Beverly Pierce, heard a rumor from an employee that Ms. Dong had taken an unauthorized couriering trip. Ms. Pierce discussed the rumor with Douglas Robinson, who was the registrar of the Hirshhorn and Ms. Dong's direct supervisor. Ms. Pierce is Mr. Robinson's supervisor, and she asked him to investigate the rumor. Mr. Robinson found no evidence of such a trip or its authorization when he investigated the Hirshhorn files.

Mr. Robinson then contacted Diane Farynyk, the registrar of the Museum of Modern Art to further investigate the rumor. He asked Ms. Farynyk to check the files of the museum for information regarding the transporting of the painting from Barcelona to New York. After checking the files, Ms. Farynyk contacted Ms. Pierce (in the absence of Mr. Robinson) at the Hirshhorn. Ms. Pierce also corresponded with Aileen Chuk, who was working at the Museum of Modern Art at the time the painting was transported there and arranged the courier trip with Ms. Dong.

Through her correspondence with Ms. Farynyk and Ms. Chuk, Ms. Pierce confirmed that Ms. Dong had couriered the Miro painting from Barcelona to the Museum of Modern Art in New York City.

Thereafter, Ms. Pierce conferred with employees at the Smithsonian in the Office of General Counsel and in the Office of Human Resources regarding the appropriate procedure to be followed and appropriate sanctions to be imposed for violation of museum procedures.

At no time prior to contacting any of these people did Ms. Pierce or Mr. Robinson contact Ms. Dong herself about her alleged misconduct or inquire into her version of the events which transpired. Both Ms. Pierce and Mr. Robinson testified that they proceeded without first contacting Ms. Dong because they hoped to establish that the original rumor was false. They believed that all unpleasantness for Ms. Dong would be avoided and the incident would end quietly if they simply determined the falseness of the rumor without confronting Ms. Dong.

It is apparent from both testimony and various exhibits in the record that there were many personnel problems in the Registrar's Office at the Hirshhorn. Ms. Dong had discussed and complained about some of them over the years.

Although they never questioned her competence, integrity, or trustworthiness, it is clear that neither Ms. Pierce nor Mr. Robinson wished to question Ms. Dong directly about a significant professional issue. Each felt that to do so would create further tension in an office which already seemed beset with personnel problems. Ms. Pierce and Mr. Robinson felt that the creation of such tension was unnecessary if they could determine that no factual basis for the rumor existed.

It is apparent from Mr. Robinson's testimony and demeanor that he is an administrator who avoids employee confrontation as well as direct answering of questions if at all possible. Ms. Pierce admitted that she never considered what the potential impact on Ms. Dong's reputation might be from going outside the Hirshhorn to question industry colleagues about the incident in question.

The Smithsonian has always taken the legal position that it is not covered by the Freedom of Information Act (FOIA), 5 U.S.C. 552, et seq., or the Privacy Act, 5 U.S.C. 552(a) (1994). In Cotton v. Adams, 798 F.Supp. 22 (D.D.C.1992), Judge Charles Richey of this District Court held that the Smithsonian is an agency subject to FOIA and the related Privacy Act. The Smithsonian concedes that it has taken no action to inform its employees of the holding in that case because it believes the case was wrongly decided. All employees who testified on the subject at this trial stated that they never received any training or education about the substance or the requirements of the Privacy Act and that it was their understanding that the Smithsonian, including the Hirshhorn Museum, was not covered by the Act.

At an earlier stage in this litigation, this Court also ruled, in agreement with Cotton v. Adams, that the Smithsonian is an agency within the meaning of FOIA and the Privacy Act. Dong v. Smithsonian Institution, 878 F.Supp. 244 (D.D.C.1995).

II. Conclusions of Law

Plaintiff's claim against the Smithsonian is based on section 552a(e)(2) of the Privacy Act, which provides that agencies collect information to the greatest extent practicable from the subject individuals when the information may result in adverse determinations.

The D.C. Circuit held in Waters v. Thornburgh, 888 F.2d 870, 873 (D.C.Cir.1989) that "[i]n the context of an investigation that is seeking objective, unalterable information, reasonable questions about a subject's credibility cannot relieve an agency from its responsibility to collect that information first from the subject." The Waters court noted that the act "is fundamentally concerned with privacy. It supports the principle that an individual should, to the greatest extent possible, be in control of information about him [or her] which is given to the government ... a principle designed to insure fairness in information collection which should be instituted whenever possible." Id. at 875. The Waters opinion also points out that the agency does not have the option of choosing which source would provide the most accurate information. The point of the provision in question, 552a(e)(2), is that it "reflects congressional judgment that the best way to ensure accuracy in general is to require the agency to obtain information `directly from the individual whenever practicable.'" Waters, 888 F.2d at 874 (quoting OMB Privacy Act Guidelines, 40 Fed.Reg. 28,949, 28,961 (1975)).

The OMB guidelines relied on in Waters were issued to implement and aid in the administration of the Privacy Act. They list several factors to be considered by agencies when they propose to collect information from a third-party source. Some of these considerations include: the nature of the program; the costs; the risk that the information collected from the third party, if inaccurate, could result in an adverse determination; the need to ensure the accuracy of information supplied by an individual; and, once the agency has determined that it was not practicable to obtain the information from the subject, the provisions for verifying any third-party information with the subject individual.

The Defendant here does not...