Zimbelman v. Savage

• Decision Date: 15 October 2010
• Docket Number: Array
• Court: U.S. District Court — District of South Carolina
• Parties: Rita J. ZIMBELMAN and Karen Michalik, Plaintiffs,v.Col. Steven S. SAVAGE, et al., Defendants.Rita Zimbelman and Karen Michalik, Plaintiffs,v.United States of America, Defendant.

745 F.Supp.2d 664

Rita J. ZIMBELMAN and Karen Michalik, Plaintiffs,

v.Col. Steven S. SAVAGE, et al., Defendants.Rita Zimbelman and Karen Michalik, Plaintiffs,

v.United States of America, Defendant.

Civil Action Nos. 3:97–592–MJP

3:98–348–MJP.

United States District Court, D. South Carolina.

Oct. 15, 2010.

Kristina Michelle Anderson, Anderson and Anderson, Aiken, SC, John Michael Brown, John Michael Brown Law Office, Augusta, GA, for Plaintiffs.Nicole M. Wickham, Air Force Legal Services Agency, Arlington, VA, for Defendant.

OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW

MATTHEW J. PERRY, JR., Senior District Judge.

Plaintiffs commenced these actions against the United States for damages after they were terminated from their Air Force jobs in March 1995. The first case, Civil Action 97–592, was filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging several constitutional violations, among them that the Air Force violated their Fifth Amendment rights by failing to grant them a name-clearing hearing. This Court denied Defendant's motion for partial summary judgment on the Fifth Amendment claim. The United States Court of Appeals for the Fourth Circuit reversed this Court's decision and remanded the case with instructions to dismiss Plaintiffs' Fifth Amendment claim. Zimbelman et al. v. Savage, et al., 228 F.3d 367 (4th Cir.2000). The second case, Civil Action 98–348, was filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. The cases were consolidated for trial, the parties having stipulated that the sole Defendant is the United States of America.

I

It appears from the evidence that Shaw Air Force officials received information that alleged acts of misconduct by employees of the Shaw Air Force Base Officers' Club had occurred at various times. An investigation by the Office of Special Investigations (OSI) personnel was commenced in September 1994. Military and OSI officials decided to schedule a mandatory meeting of all employees of the Officers' Club on March 13, 1995, and confront them with the allegations of misconduct. The employees were not initially advised concerning the true purpose of the meeting. Instead, they were told that the purpose was to bid farewell to Plaintiff Rita Zimbelman who was leaving Shaw Air Force Base to become the manager of the Officers' Club at Dobbins Air Force Base, a position which she had already accepted. Both Plaintiffs Rita Zimbelman and Karen Michalik, along with the other Officers' Club employees, attended the meeting in accordance with the mandatory notice.

IIFindings of Fact

Plaintiffs, Rita Zimbelman and Karen Michalik, complain that on and after March 13, 1995, tortuous wrongs were committed against them by military officials and civilian employees of the OSI at Shaw Air Force Base. Specifically, they allege and Defendant denies that on March 13, 1995, Defendant's agents and employees arrested and detained them against their will at Shaw Air Force Base and held them without an arrest warrant and without probable cause for “nearly eight hours” and thereafter “through its law enforcement personnel, disseminated information into the community that was both false and misleading” which “implicated both plaintiffs in criminal activity.” “Plaintiffs allege (and Defendant denies) that Defendant's employees transmitted false and misleading information concerning Plaintiff Zimbelman to a prospective employer who had already agreed to hire (Zimbelman) to manage the Dobbins Air Force Base Officers' Club” and thereby caused (Zimbelman) to lose the Dobbins Air Force Base job; and that they wrongfully terminated both Plaintiffs from their employment with the Defendant claiming falsely that Plaintiffs had committed various criminal acts. Plaintiffs allege (and Defendant denies) that Defendant's law enforcement agents and employees maliciously and without cause prosecuted Plaintiff Zimbelman for alleged criminal violations; and that (Zimbelman) has been acquitted of all charges. Plaintiffs allege (and Defendant denies) that they have suffered damages that were proximately caused by the aforementioned acts of Defendant's agents and employees, including but not limited to past and future wages, employment opportunities, standing in the community, and mental anguish. Plaintiffs allege (and Defendant admits) that they have properly given notice and have exhausted all administrative remedies under the Federal Tort Claims Act for the following violations:

1. that Plaintiff Zimbelman has been maliciously prosecuted, falsely arrested, falsely imprisoned, had her right to privacy violated, and has suffered the intentional infliction of emotional distress; and

2. that Plaintiff Michalik has been falsely arrested, falsely imprisoned, had her right to privacy violated and suffered the intentional infliction of emotional distress.

In its answer, Defendant United States admits that Plaintiffs filed claims with the Department of Defense concerning the matters alleged in their complaint and that Plaintiffs have exhausted their administrative remedies, but asserts that it is not liable to Plaintiffs because all acts complained of in the complaint were done by Defendant's agents and employees in good faith, in the exercise of their assigned duties with reasonable belief in the validity of all acts committed by them.

1. Plaintiffs Rita Zimbelman and Karen Michalik have timely filed this lawsuit for false arrest, intentional infliction of emotional distress, and invasion of privacy. Rita Zimbelman has additionally timely filed a malicious prosecution claim.

2. Prior to that, on March 6, 1997, Rita Zimbelman and Karen Michalik timely filed a notice of claim against the United States concerning the matters raised by the pleadings in this case. (Stipulation of the parties at the trial of this case).

3. These claims were rejected by the United States Air Force on August 15, 1997. (Stipulation of the parties at the trial of this case).

4. Plaintiffs have withdrawn their claim for invasion of privacy. (Statement of Plaintiffs' Counsel at the close of Plaintiffs' case).

5. The evidence shows that Plaintiffs and around forty other individuals were ordered to attend a “mandatory meeting” at the Shaw Air Force Base Officer's Club on March 13, 1995. The employees attended because they were ordered by Colonel Filan, the Commander of the Services Group Squadron. Colonel Filan ordered the meeting at the request of the Office of Special Investigation Detachment 212 at Shaw Air Force Base. The employees attending believed this “mandatory” meeting was actually a going away party for Plaintiff Zimbelman. (Testimony of Colonel Filan; Karen Michalik, Vol. 3 p. 50 lines 21–22; Testimony of Leona White, Vol. 2, p. 42 lines 1–20; Rita Zimbelman, Vol. 1 p. 38–39).

6. The purpose of the meeting was to interrogate the employees of the club concerning alleged wrongdoing. (Testimony of Colonel Carey deposition, p. 15 line 4 to p. 16, line 3). Many of the employees, including both Plaintiffs, had already been designated as “suspects” by the Office of Special Investigation as a result of a criminal investigation that was opened in January 1995. (Testimony of Agent Capps, Vol. 2, p. 126 line 22 to p. 127 line 6; and Defendant's Exhibit One).

7. One of the employees, Leona White, who is not a party to this case, has corroborated Plaintiffs' version of the events. Specifically, Plaintiffs and this witness testified that the following took place:

(a) At the beginning of the meeting, Colonel Filan accused all present of being thieves. (Testimonies of Leona White, Vol. 2, p. 45 line 23 to p. 46 line 21; Rita Zimbelman, Vol. 1 p. 41, line 23 through p. 42 line 2; and Karen Michalik, Vol. 3 p. 51 line 17 to p. 52 line 5; Defendant's Exhibit 19). ¹

(b) Colonel Filan told the employees that there was video tape evidence showing that all the employees had been stealing from the Officer's Club. (Testimonies of Leona White, Vol. 2 p. 48 lines 11–16; and Karen Michalik Vol. 3 p. 51 line 17 to p. 52, line 5).

(c) At the mandatory meeting Colonel Filan told the employees that they were to be split up and to await their interviews. Colonel Filan and other OSI Agents indicated that the employees could not go until after they were interviewed. (Testimonies of Karen Michalik, Vol. 3 p. 69 line 22 to p. 70 line 10; Rita Zimbelman, Vol. 1 p. 43 line 7 to p. 44 line 21; and Leona White, Vol. 2 p. 48 lines 11–16; Vol. 2 p. 52 line 10 to p. 53 line 21; Vol. 2, p. 54 line 12; Vol. 2 p. 57 lines 15–18,). At one point, Mrs. White asked to go because she was sick and was told to go sit down. (Vol. 2 p. 50 lines 1–8).

(d) On March 13, 1995, during the mandatory meeting, various employees frequently requested to leave, to use the telephone or to go to the bathroom. They were not allowed to leave. They were escorted to the bathroom by agents and if they had to make a telephone call, they were escorted by agents who would listen in on their conversations. ( See cites above and testimony of Agent Welch, Vol. 4 p. 139).

(e) After the interrogation, each employee was sent to Colonel Filan who would either tell them to go home and await word, or hand them termination papers. (Testimony of Colonel Filan, Vol. 4 p. 139).

8. The accusations of criminal conduct by Colonel Filan were repeated in the local newspapers in the days following this operation. This publicity was coordinated by Colonel Carey. (Testimony of Colonel Carey, deposition p. 101 line 15 to p. 102 line 10; and Plaintiffs' Exhibit 14). These public accusations of criminal conduct were intended to include Plaintiff Michalik. (Deposition of Colonel Carey, p. 103 line 6 to p. 104 line 12).

9. Plaintiff Zimbelman is required to carry the burden of evidence to support the following elements for her claim of malicious prosecution:

(a) Institution or continuation of original...