Dodge v. Trustees of Nat. Gallery of Art

Decision Date29 June 2004
Docket NumberNo. CIV.A. 03-1613(RCL).,CIV.A. 03-1613(RCL).
Citation326 F.Supp.2d 1
PartiesFred DODGE, Plaintiff, v. TRUSTEES OF the NATIONAL GALLERY OF ART, et al., Defendants.
CourtU.S. District Court — District of Columbia

Lee Boothby, Boothby & Yingst, Washington, DC, for Plaintiff or Petitioner.

Robin M. Earnest, U.S. Attorney's Office, Washington, DC, for Defendant or Respondent.


LAMBERTH, District Judge.

This matter comes before the Court on defendant's Motion to Dismiss or, in the alternative, for Summary Judgment. [# 4] Defendant moves to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on grounds that the plaintiff has failed to state a claim upon which relief can be granted. Plaintiff submitted a memorandum in opposition, and the defendant subsequently filed a reply to plaintiff's opposition. Upon consideration of the parties' filings, the applicable law, the Federal Rules of Civil Procedure and the facts of this case, this Court finds that the defendant's Motion to Dismiss should be GRANTED with respect to Count I and the defendant's Motion for Summary Judgment should be GRANTED for Counts II and III.


The plaintiff filed this complaint on July 30, 2003. The plaintiff contends that the defendants1 violated the Privacy Act of 1974 as set forth in 5 U.S.C. § 552(a) by (1) the supplying of confidential medical records; and (2) the publishing of confidential information, particularly plaintiff's social security number. The plaintiff also contends that the individual defendants violated his First and Fifth Amendment Right to petition by retaliating against him by posting the posting of a Security Alert. (Pl.'s Mem. of P. & A. in Opp'n to Def. Mot to Dismiss at 1.)

The National Gallery employed Fred Dodge ("plaintiff") as an Electrician. (Def.'s Memo. in Supp. of Summ. J. at 2.) On or about November 26, 2001, Fred Dodge applied for leave status under the Family Medical Leave Act of 1993 (FMLA). (Pl.'s Compl. at ¶ 10). A letter from his son's physician supported use of the plaintiff's FMLA leave (Pl.'s Compl. at ¶ 10). On December 4, 2001, the defendant issued a letter through Linda Pettiford, the personnel staffing specialist, approving the plaintiff's request as of November 26, 2001, which would remain in effect until November 26, 2002.2 (Id.)

During the week of February 4, 2002, the plaintiff became concerned about the confidentiality of his son's confidential medical certification which he submitted to the defendant with his FMLA application. (Pl.'s Compl. at ¶ 12.) Plaintiff alleges that he contacted the personnel department to reiterate that he did not want to allow anyone to review his son's medical file. (Pl.'s Compl. at ¶ 12.)3

On February 1, 2002, Mr. Thomas, the plaintiff's supervisor, notified the plaintiff of a mandatory overtime assignment he was scheduled to participate in on February 22, 2002. (Pl.'s Compl. at ¶ 12.) The National Gallery required the plaintiff's participation in a full scale test of the Gallery's emergency back-up power system. (Def.'s Ex. 7; Letter from Darrell Wilson to plaintiff, March 20, 2002 at 2.) The plaintiff requested use of his FMLA leave and was informed by Meredith Weiser, deputy personnel officer, that his FMLA status did not relieve him from mandatory overtime duties and therefore, the decision would have to be left to the discretion of his supervisor. (Pl.'s Compl. at ¶ 12.)

Contrary to Thomas's instructions and advance notice, the plaintiff refused to work4 (Def.'s Ex. 7; Letter from Darrell Wilson to plaintiff, March 20, 2002 at 2.) On the day of the mandatory overtime assignment, the plaintiff mentioned to Thomas that the National Gallery could not make him work since he was approved for FMLA leave. For this reason, on or about February 27, 2002, Thomas requested information relating to the FMLA application as part of his review of the plaintiff's refusal to work the mandatory overtime assignment. Thomas concluded that the plaintiff's FMLA status did not excuse him from the mandatory overtime work assignment and initiated disciplinary action against the plaintiff.5 (Def.'s Ex. 7; Letter from Darrell Wilson to plaintiff, March 20, 2002 at 2.)

The plaintiff composed a letter to object to his duty to work mandatory overtime to Darrell R. Wilson, ("Defendant Wilson") Administrator of the National Gallery. (Pl.'s Compl. at ¶¶ 15,16.) In response, Defendant Wilson informed the plaintiff that the supervisor had discretion and his decision would be respected because according to Gallery Circular No. 61 on FMLA, Section XI, "the employee's immediate supervisor will be responsible for serving as the primary and initial contact with his or her staff who is requesting FMLA leave." (Pl.'s Compl. at ¶ 16.)

On March 8, 2002, the plaintiff wrote an additional letter of complaint6 to Earl A. Powell III, the Director of the National Gallery of Art. (Pl.'s Compl. ¶ 18.) In response to the plaintiff's letter, Defendant Wilson replied that the Gallery did not provide the plaintiff's supervisor with any other medical records concerning his son; and that the information was provided to the supervisor on a need to know basis in the supervisor's attempt to "decide whether [the plaintiff's] refusal to work a mandatory overtime assignment was proper." (Mem. of P. & A. in Supp. of Def. Mot. to Dismiss at 3.) On April 24, 2002, Michael Prendergast, Deputy Chief for Operations, Office of Protection Services for the defendant, found the plaintiff guilty of insubordination for failing to work the mandatory overtime on February 22, 2002 and suspended him for 4 work days.7 (Pl.'s Compl. at ¶ 19.) Moreover, Defendant Wilson reassured the plaintiff that the Gallery did not provide the plaintiff's supervisor with any other medical records concerning the plaintiff's son, outside that which was required for the supervisor to decide whether to refuse the plaintiff's refusal to work mandatory overtime was proper. (Def.'s Ex. 3; Letter from Darrell Wilson to Fred Dodge, March 20, 2002.)

The plaintiff also sent copies of his March 8th letter to Senators Barbara A. Mikulski and Paul Sarbanes and to Congressmen Steny A. Hoyer, Robert L. Ehrlich, Wayne Gilchrest, Benjamin L. Cardin, Constance A. Morella, Albert R. Wynn and Elijah E. Cummings. (Pl.'s Compl. ¶ 18.) In response to these letters, the National Gallery received two Senatorial inquiries from Senators Barbara Mikulski and Paul Sarbanes. (Def.'s Ex. 4, March 27, Response to Inquiry by Senator Sarbanes; Def.'s Ex. 5, May 21 Response to Inquiry by Senator Mikulski.)

The plaintiff alleges that the defendants violated his First Amendment Right by acting in retaliation to this letter. (Pl.'s Mem. of P. & A. in Opp'n. at 12.) Plaintiff alleges that a "Security Alert" had been posted around the National Gallery building with notices of the plaintiff's photograph, age, height, weight, date of birth, sex, race, complexion and Social Security number, which the plaintiff alleges was in retaliation for his protected action of bringing the attention of the members of Congress to his case. (Pl.'s Compl. ¶ 21.) The plaintiff alleges that this "security alert" violated his First and Fifth Amendment rights of Privacy under the Privacy Act of 1974. (Pl.'s Compl. ¶ 21.) The defendants explained, however, that this Security Alert was standard protocol when an employee is being removed.8 More specifically in the plaintiff's case, this Security Alert was grounded in the defendant's express security concerns justifying the plaintiff's removal.9

On July 15, 2002 Michael Giamber ("Defendant Giamber"), Deputy Chief, Facilities Management, sent the plaintiff a nine page notice of proposed removal justified by four reasons: unauthorized taking of an I.D. badge,10 making a false statement, concealment of misappropriated property and tampering with a gallery key ring.11 (Def.'s Ex. 1; Notice of Proposed Removal July 15, 2002 at 2.) Defendant Giamber explained that because the plaintiff had taken a defective key badge after explicitly being told that he could not have it and tampering with a Gallery key ring which he denied any knowledge of tampering with and was subsequently found in his possession, he was being removed. (Def. Mot. for Summ. J. at 3.). On August 29, 2002, the National Gallery issued a decision upholding the bases for the plaintiff's removal.12 (Def. Ex. 6; Letter from George-Ann Tobin to Fred Dodge, August 29, 2002).

As the plaintiff was appealing his removal to the Merit Systems Protection Board (MSPB), the plaintiff and the defendant entered into a Settlement Agreement and a General Release Agreement ("Settlement Agreement") to resolve these employment matters. (Def.'s Memo. in Supp. of Summ. J. at 1.) The General Release Agreement provided that in exchange for the National Gallery's agreement to reinstate the plaintiff for the period covering August 31, 2002 to December 31, 2002, the plaintiff would agree to submit a resignation letter effective December 31, 2002. Additionally, the plaintiff agreed to waive his right to seek judicial relief based upon any issues related to his removal. (Statement of Material Facts not in Genuine Dispute at ¶¶ 20-21.) Paragraph 1 of the Settlement Agreement stipulates that,

"The Settlement Agreement and General Release (Agreement) is entered into on this date, January 30, 2003, by the National Gallery of Art, its Directors, officials, and employees (`the Gallery') and by Fred Dodge (Appellant) on behalf of himself, his executor, administrator, heirs and assigns. This Agreement resolves all matters arising from Appellant's removal from the Gallery; including his Merit Systems Protection Board (Board) appeal, DC-0752-03-0011-I-1 (Appeal) of this action; and any and all claims of any nature which Appellant raised or could raise in any forum in which he could appeal, complain, grieve or otherwise...

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