Krowitz v. DEPT. OF AGRICULTURE, US FOREST SERVICE, M84-303 CA2.

• Decision Date: 25 August 1986
• Docket Number: No. M84-303 CA2.,M84-303 CA2.
• Citation: 641 F. Supp. 1536
• Parties: Zander KROWITZ, Plaintiff, v. DEPARTMENT OF AGRICULTURE, UNITED STATES FOREST SERVICE, Defendant.
• Court: U.S. District Court — Western District of Michigan

641 F. Supp. 1536

Zander KROWITZ, Plaintiff, v. DEPARTMENT OF AGRICULTURE, UNITED STATES FOREST SERVICE, Defendant.

No. M84-303 CA2.

United States District Court, W.D. Michigan, N.D.

August 25, 1986.

Paul M. Marin, Marquette, Mich., for plaintiff; Peter Broida, Washington, D.C., of counsel.

John A. Smietanka, U.S. Atty., Julie Woods, Asst. U.S. Atty., Grand Rapids, Mich., for defendant.

OPINION

HILLMAN, Chief Judge.

This litigation stems from disclosures regarding the job performance of plaintiff Zander Krowitz ("Krowitz") during his tenure as an administrative officer ("AO") and employee of the Ottawa National Forest ("ONF"). The ONF, headquartered in Ironwood, Michigan, is operated by defendant United States Department of Agriculture, Forest Service ("Forest Service"), and the disclosures were made by Joseph Zylinski ("Zylinski"), Forest Supervisor of the ONF. Plaintiff claims that Zylinski's disclosures violated the Privacy Act of 1974, ("The Act"), specifically Section 3 thereof, codified at 5 U.S.C. § 552a, concerning the disclosure of agency records maintained on individuals. Jurisdiction is premised upon 5 U.S.C. § 552a(g)(1)(D).

The matter was tried to the court in Marquette, Michigan, on February 20, 1986. The court thereafter requested and received post-trial briefs from both parties. Plaintiff also filed a motion for leave to amend his complaint to conform with the evidence offered at trial. This opinion constitutes the court's ruling on that motion and the court's findings of fact and conclusions of law, as required by Rule 52(a), Fed.R.Civ.P.

Zylinski, a Forest Service employee for some 30 years, became Forest Supervisor of the ONF in September 1981. Krowitz had been employed as AO for the ONF since April 17, 1978. Upon Zylinski's arrival in Ironwood, Krowitz befriended him, introducing Mr. and Mrs. Zylinski to Mrs. Krowitz and to the Krowitzes' circle of friends in the community. That circle included a Friday night social "couples' group," comprised of the Krowitzes, the James R. Shaws, the John R. Fitzgeralds, and the Tom Vizankos.

Soon after his arrival in Ironwood, Zylinski developed concerns regarding Krowitz' work performance. Zylinski contacted Mr. Karwoski, a personnel specialist in the Forest Service's Regional Office in Milwaukee, Wisconsin. At Zylinski's request, Karwoski came to the ONF in February 1982 to assess Krowitz' skills, abilities and interests, to suggest alternative career opportunities for him, and to develop a plan of action, jointly with Zylinski, to deal with Krowitz' performance problems. Karwoski reviewed Krowitz' personnel file and interviewed Krowitz, Zylinski, and Frank Voytas, Zylinski's deputy forest supervisor. Following the visit, Karwoski sent Zylinski a memo (Plft's Ex. 1) with his findings and suggestions. Karwoski found Krowitz to be an "idea" person with an aversion to task-oriented duties. Krowitz' AO position required him to handle the business affairs of the ONF and AO performance standards were mainly task-oriented in nature. Karwoski thus concluded that there was a 70-80 percent certainty that Krowitz would not be able to perform according to those performance standards. Karwoski suggested several alternatives, including counseling Krowitz on possible alternative job placements, while continuing to document his performance inadequacies and advise him on how they might be corrected. After reading the memo and considering its suggestions Zylinski placed it in a file identified as "AO" or "Krowitz" which he had started and kept in his desk.

In addition to this desk file folder, Zylinski identified other files generally maintained on all Forest Service employees, including Krowitz. These included an employee development file ("EDF"), containing documents pertaining to employee training, and an official personnel file ("OPF"), the latter kept at the Regional Office in Milwaukee. The EDFs for ONF employees were kept in the Ironwood office's personnel section headed by personnel officer David Weber and staffed by three employees. The personnel section was located three doors from Zylinski's office. The EDFs, to Zylinski's knowledge, were kept in locked file cabinets within that section, accessible to staff officers without permission but to others with permission only.

Zylinski met with Krowitz on March 31, 1982. In that meeting it was agreed that Krowitz' job emphasis would shift from day-to-day administrative coordination of the business management section to management analysis of a series of Forest Service programs. In a March 31, 1982 letter from Zylinski to Krowitz memorializing this meeting (Pltf's Ex. 2), Krowitz' new job responsibilities were detailed. It was noted that most of his then-current AO responsibilities were being waived to allow ample time for completion of new assigned management analysis projects, and that the changes were considered necessary because "of the difficulties experienced with existing job standards and the need to better channel and utilize Krowitz' skills." Zylinski further noted that "the ultimate objective of this action involves an out-placement," and Krowitz was "urged to expend extra efforts to seek out those opportunities."¹

Zylinski met with Krowitz again on April 13, 1982 and identified a series of six projects Krowitz was to perform in his new management analyst capacity. The first, entitled "Areas for Contracting," was intended to define areas for Forest Service contracting other than those already developed or then under contract. Krowitz began work on this project in early May 1982 and submitted his report on June 7, 1982. On June 14, 1982, Zylinski and Krowitz met to discuss the quality of that report, which Zylinski found unsatisfactory. This meeting was memorialized in a September 19, 1982 memo (Pltf's Ex. 3) from Zylinski to Krowitz.² Zylinski kept his copy of the memo in his desk file. At the conclusion of the June 14, 1982 meeting, Zylinski instructed Krowitz to start on the second special project, due September 30, 1982, which concerned implementation in the ONF of "FLIPS," the Forest Service's automated computerized system.³

Krowitz' FLIPS report, due on September 30, 1982, was submitted to Zylinski on September 29, 1982. Zylinski reviewed it himself, had it reviewed by members of his staff, and also sent a copy to Duane Breon, a deputy regional forestor at the Regional Office who had a staff experienced in the FLIPS system and its implementation. Kathleen Wolf, a member of Breon's staff, evaluated Krowitz' FLIPS report and forwarded her evaluation of that report (Pltf's Ex. 5) to Zylinski. She pointed out several errors and deficiencies in Krowitz' analysis and report.

On October 5, 1982, plaintiff made a written request (Pltf's Ex. 4) to the Regional Office for assistance under the employee assistance program known as CONCERN, which was designed to help employees having problems other than in the performance area. Plaintiff's letter expressed concern about the deterioration of his AO position during the preceding six months. Zylinski eventually received a copy of this letter from the Regional Office and filed it in his desk file. Plaintiff's letter resulted in a 1½ day visit to the ONF by Ronald V. Rydberg, leader of the Regional Office's Employee Relations and Labor Management Group. Rydberg met individually with Zylinski, Voytas and plaintiff. Following his visit, Rydberg wrote to Zylinski, on November 30, 1982, (Pltf's Ex. 6), expressing his view that the CONCERN program's purview did not embrace plaintiff's problems. He noted that what plaintiff described was not, in reality, a personal problem which he brought to work with him which interfered with his ability to perform (the type of problem CONCERN was designed to address), but rather involved problems arising strictly out of the work environment. Rydberg opined that plaintiff's poor performance was really the root of his poor relations with Forest Service officials and stated that "if he performed well, there would be no issues to discuss here." He noted that the CONCERN program did not intercede between employees and work supervisors on such work problems. He concluded that "the course remaining is to propose Krowitz' removal for unacceptable performance," and discussed procedural precautions pertinent to that proposed course of action. Zylinski kept his copy of this letter from Rydberg in his desk file.

Zylinski also received and filed in his desk file a copy of a November 30, 1982 letter from Mr. Carl Webb to plaintiff (Pltf's Ex. 7) summarizing the Forest Service's investigation of the concerns expressed in plaintiff's October 5, 1982 letter. Mr. Webb also opined that plaintiff's poor performance, rather than personal problems, was the root of his difficulties at the ONF. Mr. Webb urged plaintiff to work directly with Zylinski to improve his performance and concluded that if he did "demonstrate good performance, the concerns expressed in Krowitz' October 5, 1982 memo will be taken care of."

On November 1, 1982, Zylinski and Krowitz met to discuss Krowitz' FLIPS project report, which Zylinski found unsatisfactory. This meeting was memorialized in a December 23, 1982 letter from Zylinski to Krowitz (Pltf's Ex. 9), which included some of the criticisms of the project expressed by Ms. Wolf, as well as Zylinski's own comments and criticisms of Krowitz' FLIPS report.⁴ Zylinski kept his copy of this letter in his desk file.

Sometime after Krowitz started the third special project, which was due on February 15, 1983, Zylinski prepared some handwritten notes to himself regarding plaintiff (Pltf's Ex. 8). The notes, which Zylinski kept in his desk file, detailed the history of his performance concerns regarding Krowitz and the steps which had been taken regarding those concerns. The notes reflected that prior to Krowitz' preparation of his FLIPS report, Zylinski and the Regional Forester in Milwaukee had discussed the...