Cardamone v. Cohen, et al

• Decision Date: 25 October 2000
• Docket Number: No. 99-6445,99-6445
• Citation: 241 F.3d 520
• Parties: (6th Cir. 2001) Louis P. Cardamone, Plaintiff-Appellant, v. William H. Cohen, et al., Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 520

241 F.3d 520 (6th Cir. 2001)

Louis P. Cardamone, Plaintiff-Appellant, v. William H. Cohen, et al., Defendants-Appellees.

No. 99-6445

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 25, 2000

Decided and Filed: February 28, 2001

Appeal from the United States District Court for the Western District of Kentucky at Louisville: No. 97-00540 Edwin S. Hopson, WYATT, TARRANT & COMBS, Louisville, Kentucky, for Appellant.

Terry M. Cushing, Marisa J. Ford, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellees.

Before: SUHRHEINRICH , DAUGHTREY , and MOORE , Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

OPINION

The Plaintiff, Louis P. Cardamone, appeals the district court's grant of summary judgment to the Defendants, the United States Department of Defense, Domestic Dependent Elementary and Secondary Schools ("DDESS"), the Secretary of Defense, and Lillian Gonzalez, the Director of the Department of Defense Education Activity. Cardamone claims that DDESS violated his rights under the Privacy Act of 1974 codified at 5 U.S.C. §552a, when DDESS failed to elicit information "to the greatest extent practicable" directly from him during the course of an investigation concerning Cardamone's managerial practices as Superintendent of the Fort Knox Community Schools ("FKCS"). Cardamone also claims that DDESS violated the Privacy Act's requirement that an agency inform witnesses of the "principal purpose" of the investigation. For the reasons set forth below, we AFFIRM the district court's grant of summary judgment in favor of DDESS with respect to all of Cardamone's claims under the Privacy Act.

I. FACTS AND PROCEDURE

This case centers around an investigation conducted by DDESS into allegations of hostile managerial practices and other misconduct by Cardamone in his capacity as Superintendent of the Fort Knox Community Schools ("FKCS"). The FKCS is one of several school systems operated by DDESS under 10 U.S.C. §2164 (formerly 20 U.S.C. §241), which serve to provide an education to the children of the members of the U.S. Armed Forces. Cardamone served as Superintendent of FKCS from July 1, 1994 until his termination from federal service on June 28, 1996. The investigation at issue in this case was prompted on November 21, 1995, when four FKCS administrators sent a letter complaining about and requesting an investigation into Cardamone's management practices to Dr. Lillian Gonzalez, the Director of the Department of Defense Education Activity. This letter described the management climate as "hostile and counterproductive to our mission," expressed "real concern regarding retaliation," and stated that "[m]anagement by intimidation and harassment is the best characterization of [Cardamone's] tenure at Fort Knox." Joint Appendix ("J.A.") at 45 (Letter of four FKCS administrators to Dr. Gonzalez and Dr. Nevarez). On December 8, 1995, Dr. Hector O. Nevarez, then Director of DDESS, formally requested its General Counsel, Robert Sutemeier, to conduct an investigation into these complaints about Cardamone's performance as Superintendent of FKCS.

The DDESS investigation resulted in ten allegations, which in summary are that Cardamone: (A) "inappropriately obtained or accepted on-base housing at Fort Knox, as well as commissary and exchange privileges"; (B) knowingly approved sick leave for the Fort Knox High School principal to travel to Puerto Rico to sell his house; (C) "approved or assented to the purchase of athletic shoes for the high school basketball team from the school Extra Curricular Account"; (D) failed and/or delayed carrying out the proper orders and directives of his superiors regarding responsibility for certain personnel functions; (E) "engaged in a pattern of disrespectful, abusive, insulting, demeaning, and intimidating conduct toward some subordinate employees of the [FKCS], and has thus created a hostile working environment characterized by fear and low morale which is counterproductive to the mission of the [FKCS]"; (F)"reprised against certain employees of the [FKCS] who had complained directly to the Fort Knox Board of Education about Mr. Cardamone's abusive and harassing conduct, by threatening them with a charge of insubordination if they ever engaged in similar actions in the future"; (G) "engaged in 'preselection' and disregarded federal merit selection principles in the hiring process of a Junior ROTC instructor for the Fort Knox High School"; (H) retaliated against Gary Doolittle, a FKCS employee "who filed an EEO complaint and complained directly to the Fort Knox Board of Education, the Director of the [Department of Defense] Education Activity, and DDESS Director, about Mr. Cardamone's abusive and harassing conduct, by curtailing his duties and job responsibilities, and by engaging in acts of harassment and public embarrassment"; (I) disregarded normal duty hours; (J) "has been derelict in his obligation to visit the individual schools under his supervision, inattentive to the social responsibilities of his position as Superintendent, and, in addition, on at least one occasion, 31 December 1995, his conduct at a social gathering in Louisville was perceived as boorish and offensive." J.A. at 87-88 (Investigation Report 3/11/96).

Before the investigation commenced, Sutemeier informed Cardamone that an investigation would be underway soon. Sutemeier's investigation took place in Fort Knox, Kentucky during December 13-19, 1995 and January 16-24, 1996. Justin Schaffer, DDESS Program Manager, and Gregory Stallworth, Equal Employment Opportunity Specialist, assisted Sutemeier with the investigation from January 16-19, 1996. On December 14, 1995, Sutemeier met personally with Cardamone and his attorney and provided Cardamone with copies of the letters that prompted the investigation. Sutemeier advised Cardamone that, because he was still serving as the Superintendent of the FKCS and several of the complainants were his subordinates, Cardamone should "be careful in his comments and actions, as even casual conversations might be construed as subtle coercion." J.A. at 82 (Sutemeier Decl. at ¶11). Sutemeier "felt this admonition to Mr. Cardamone was necessary to counteract a professional manager's instinct to solve problems by communicating with his staff." J.A. at 82 (Sutemeier Decl. at ¶11).

In total, Sutemeier interviewed sixty-one witnesses over the course of the investigation. According to Sutemeier, "[a]lthough the investigation was directed towards allegations about Mr. Cardamone, it was expanded to include almost anything that anybody wanted to come in and talk about. For example, they have a lot of pay problems up there, and I interviewed ... four or five people who came in who didn't have any knowledge or anything to say about Mr. Cardamone but they were concerned about their pay, and I listened to what they had to say." J.A. at 263 (Sutemeier Dep.). To facilitate witnesses coming forward in the investigation, Sutemeier "directed the site office there to put a notice out that [he] was there and if anybody had any complaints, almost anything concerning the operation of the district, [he] would be there to listen to what they had to say." J.A. at 263 (Sutemeier Dep.). According to Sutemeier, the contents of the notice that was posted was "something to the extent that stated [his] name and [his] position and that [he] was there ... doing an overall look-see of the district, and if anybody wanted to come and talk all they had to do was call ... to make an appointment. Now, of course, that was in addition to the people that [he] selected [him]self." J.A. at 263-64 (Sutemeier Dep.).

Sutemeier acknowledged that on his own initiative, he interviewed a number of persons who were "not employees of the Fort Knox community school system [and who] were not under the supervision of Mr. Cardamone." J.A. at 275 (Sutemeier Dep.). A few of these witnesses, however, were Cardamone's former subordinates. Before formally interviewing Cardamone, who was the last person whom Sutemeier interviewed, Sutemeier provided Cardamone with a list of topics to be covered during the interview. On January 23, 1996, Sutemeier interviewed Cardamone for five hours.

On March 11, 1996, Sutemeier submitted a "Report of Investigation, Allegations Concerning the Conduct of Mr. Louis P. Cardamone, Superintendent, Fort Knox Community Schools, Fort Knox, Kentucky," to DDESS. ¹ Sutemeier concluded that as to allegations A, B, and C "the evidence collected did not substantiate the allegation," J.A. at 90-92 (Investigation Report), and that as to allegations D, E, F, G, H, I, and J, "the evidence collected substantiated the allegation." J.A. at 93-114 (Investigation Report). On March 29, 1996, Dr. Nevarez, Director of DDESS, proposed to Dr. Gonzalez, Director of Department of Defense Education Activity, that Cardamone be removed from federal service. On June 28, 1996, Dr. Gonzalez sent Cardamone a memorandum removing him from his position as Superintendent of FKCS effective that same day.

On August 20, 1997, Cardamone filed a complaint in U.S. district court seeking relief under the Privacy Act of 1974, codified at 5 U.S.C. §552a. Cardamone alleged that DDESS violated 5 U.S.C. §552a(e)(2) which requires an agency "to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs." 5 U.S.C. §552a(e)(2). Cardamone's §552a(e)(2) claim stems from the failure of DDESS to approach him directly for information before interviewing sixty-one other witnesses. Having alleged in his complaint that DDESS's violation of §552a(e)(2) had an "adverse effect" on him, Cardamone in effect sought a civil remedy under 5 U.S.C. §552a(g)(1)(D). As provided by 5 U.S.C. §552a(g)(4), Cardamone sought damages, reasonable attorney fees, and other...