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Wiatr v. Defense Finance and Accounting Service

July 7, 2008


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



Plaintiff, employed by the federal government at the Defense Finance and Accounting Service ("DFAS") in Rome, New York, brings this action under the Privacy Act of 1974, 5 U.S.C. § 552a ("Privacy Act"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). In his amended complaint (Dkt. No. 36), he claims defendants violated his rights under the Privacy Act when his supervisor investigated a complaint against him. Plaintiff also claims his supervisor lowered his annual performance appraisal from "highly successful" to "fully successful" in retaliation for plaintiff's prior equal employment opportunity ("EEO") activity.

Defendants move (Dkt. No. 45) for summary judgment dismissing the action. Plaintiff cross-moves (Dkt. No. 46) for summary judgment. A party moving for summary judgment bears the initial burden of demonstrating that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the Court, viewing the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in non-movant's favor, determines that the movant has satisfied this burden, the burden then shifts to the non-movant to adduce evidence establishing the existence of a genuine issue of material fact requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Id. at 248.

If the non-movant fails to carry this burden, summary judgment is appropriate. See Celotex, 477 U.S. at 323.

As set forth below, the Court denies plaintiff's motion and grants defendants' motion for summary judgment in its entirety.


The following undisputed facts are relevant to plaintiff's Privacy Act claim. Plaintiff has been employed as an accountant in DFAS since 1992. David Fraczek became his supervisor in September 2002. On October 9, 2003, Patricia Goodrich, an "internal customer" also employed at DFAS, gave Mr. Fraczek a memorandum stating that earlier that day she had asked plaintiff for assistance; that plaintiff had repeatedly responded, "I don't know"; that she had stated, "so you can't help me"; that he had responded in a raised voice: "I didn't say that, don't put words in my mouth, I never said that -- you don't come down here and start accusing me and putting words in my mouth"; and that he had continued in the same vein in a raised voice for at least five minutes. Ms. Goodrich wrote:

I went back to my desk physically shaken, I have never had anyone in this office treat me in the manner he did, and not felt the abuse from anyone as I did just then from him. Three individuals came up to me, almost immediately, to tell me I did not have to take that abuse, that I should not allow anyone to treat me that way, that they had overheard him and no one should have to take what I did from him. She added that she "felt abused and degraded."

Mr. Fraczek contacted Mike Duignan, DFAS Human Resource Director, for guidance in handling the situation, and received advice a number of times from Katherine McCurdy, DFAS Management/Employee Relations specialist. As instructed, Mr. Fraczek obtained from Ms. Goodrich the names of other employees who might have witnessed the incident. He began his investigation by speaking with potential witnesses, collecting statements from them, typing up summaries of their statements, and obtaining each witness' signature on the summary of his or her statement. One witness, Mr. Deemer, requested that changes be made to his statement, and ultimately never signed it.

On October 31, 2003, after gathering information from Ms. Goodrich and witnesses, Mr. Fraczek interviewed plaintiff, asking him a series of questions as suggested by the human resources department. According to Mr. Fraczek, he did not contact plaintiff sooner because he did not know whether the complaint was valid. Mr. Fraczek did not show plaintiff Ms. Goodrich's complaint or any witness' statements. After interviewing plaintiff, Mr. Fraczek wrote a summary of his understanding of plaintiff's responses to the questions posed and sent the summary to plaintiff for signature. Initially, plaintiff refused to confirm or deny the accuracy of the summary statement of the interview, stating that he "forwarded [it] to the Union's counterparts for their review coordination and action," and requesting "copies of any and all signed statements thus to clarify any issues giving rise to this matter." Mr. Fraczek responded by e-mail stating that the investigation was not complete because he had not received plaintiff's response to the summary statement; that "until the investigation is complete, release of any statements would be premature"; that plaintiff's comments were due by November 3, 2003; and that if he did not follow the instructions, plaintiff would face disciplinary action.

Plaintiff responded by e-mail:

I cannot confirm your summary statement as being correct or not correct, disagree or not disagree. You are asking me to recall something that occurred several weeks and is now being resurrected for my review and accuracy and threatening disciplinary action if I do not sign something which I believe is not correct. Until such time that I have received a copy of the employee's concerns (from my comments), then and only then, will I be able to try to recall what happened.

I am signing this statement under duress with the understanding that my supervisor is directing me to sign a statement absent my right to due process and assistance of legal counsel.

On January 29, 2004, Mr. Fraczek issued an official Letter of Reprimand against plaintiff for "rude, discourteous, and unhelpful behavior." The letter stated: "Specifically, on Thursday, October 9, 2003, you responded to work-related questions by Ms. Patricia Goodrich, an Accounting colleague and internal customer, in a rude, discourteous and unhelpful manner." The letter briefly summarized Ms. Goodrich's complaint and witnesses' observations. The letter noted that plaintiff had not cooperated in verifying the accuracy of Mr. Fraczek's written summary of plaintiff's interview, and that as a result, Mr. Fraczek had closed the investigation based on the information available to him. The letter advised plaintiff that a copy of the ...

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