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Russell v. Donovan

United States District Court, D. New Mexico

July 11, 2019

HONORABLE MATTHEW P. DONOVAN, [1]Secretary, United States Air Force, DEPARTMENT OF THE AIR FORCE, Defendants.



         Mr. Tommy Russell (Plaintiff) worked for the Air Force as a civilian. On March 26, 2014, Senior Master Sergeant (SMSgt) Anthony Pivirotto directed Plaintiff to print a document. Plaintiff flatly refused, first in an email, and later in a confrontation in SMSgt Pivirotto's office. Plaintiff declared that he was not SMSgt Pivirotto's house boy or slave and that he would file an Equal Employment Opportunity (EEO) complaint against him. Air Force leadership, concerned with Plaintiff's response to the direction in light of the fact that he worked with sensitive and classified information, imposed escalating discipline. Ultimately, the Air Force proposed Plaintiff's removal from his position. Rather than responding to the proposed removal, Plaintiff resigned. He now claims that all discipline was imposed in retaliation for his filing of an EEO complaint. He also brings suit for constructive discharge.

         This matter is before the Court on Defendant Donovan's[2] Motion for Summary Judgment and Memorandum in Support, filed on May 2, 2019. (Doc. 46.) Jurisdiction arises under 28 U.S.C. § 1331. For the reasons stated in this Opinion, the Court will grant summary judgment in favor of Defendant and dismiss Plaintiff's claims.

         II. Legal Standards

         Plaintiff's “pro se . . . pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court may not, however, “serv[e] as the litigant's attorney in constructing arguments and searching the record.” Id. (citation omitted).

         A. Summary Judgment Standard of Review

         Summary judgment is appropriate when the Court, viewing the record in the light most favorable to the nonmoving party, determines “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). A fact is “material” if it could influence the determination of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if a reasonable trier of fact could return a verdict for either party. Id. The moving party bears the initial responsibility of “show[ing] that there is an absence of evidence to support the nonmoving party's case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party meets this burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)) (quotation marks omitted).

         B. Relevant Local Rules

         Pursuant to Local Rule 56, the party moving for summary judgment “must set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists.” D.N.M. LR-Civ. 56(b). The movant must number the facts “and must refer with particularity to those portions of the record upon which the movant relies.” Id. In return, the non-moving party must also provide “a concise statement of the material facts . . . as to which the non-movant contends a genuine issue does exist.” Id. The non-movant must number each fact in dispute, “must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed.” Id.All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.Id. (emphasis added).

         Defendant provides a lengthy statement of Material Facts (MF). (See Doc. 46 at 3-10.) Plaintiff makes no attempt to dispute MF Nos. 1, 2, 4, 7-12, 16, 19-20, 23, 27-28, 31-32, 34, 37- 38, 44-45, 48, 52-54, and 56-64. (See Doc. 56 at 4-14.) Plaintiff comments on MF Nos. 3, 5-6, 15, 22, 29-30, 33, 40, 43, 49, 51, and 55, but he does not refer to the record. (See id.) Plaintiff refers to the record regarding MF Nos. 13-14, 17-18, 21, 24-26, 35-36, 39, 41-42, 46-47, and 50, but his references do not create a genuine dispute of fact. (See Id. at 5-14.) Because Plaintiff has failed to specifically controvert Defendant's facts, the Court deems those facts undisputed.

         II. Factual and Procedural Background[3]

         In 2014, Plaintiff was a civilian employed by the United States Department of the Air Force and served as a Client Support Administrator for the 377th Security Support Squadron, 377th Security Forces Group, 377th Airbase Wing, Kirtland Air Force Base. (Doc. 46-A ¶ 2.) On March 25, 2014, Colonel (Col) Paul Barney, then Commander of the 377th Security Forces Group and Plaintiff's second level supervisor, emailed SMSgt Pivirotto, Superintendent of the 377th Security Support Squadron, and directed him to set up a telephone for a March 27, 2014 teleconference. (Id. ¶¶ 1, 6.) SMSgt Pivirotto then emailed Plaintiff and asked him to set up the telephone and print the relevant call-in numbers. (See Doc. 46-B at 3-4.)

         Plaintiff responded via email, “I'm not a flunky, you can print you[r] own numbers off, as the email was sent to you.” (Id. at 2.) SMSgt Pivirotto replied, “I have given you the direction I expect you to take. Have the telephone set up . . . and the call in numbers printed and placed next to the phone” by March 26, 2014. (Id.) Plaintiff emailed again and questioned SMSgt Pivirotto's authority to give him directions. (See id.) Plaintiff emailed a final time and stated, “You know what I'm going to file an EEO complaint against you for sure, you['re] not going [to] treat me like a slave . . . or house boy.” (See Id. at 1.)

         On March 26, 2014, Plaintiff set up the telephone but did not print the call-in numbers. (See Doc. 46-C at 56:4-21.) SMSgt Pivirotto emailed Plaintiff again and asked him to have the call-in numbers printed by 8:30 a.m. on March 27, 2014. (See Doc. 46-D-1 at 1.) On the afternoon of March 26, Plaintiff visited SMSgt Pivirotto's office and asked him why he was unable to print the call-in numbers himself. (Doc. 46-C at 54:9-13.) In a memorandum SMSgt Pivirotto later prepared for his own supervisor (Captain (Capt) Steven Brenoskie) about this incident, he stated his perception that Plaintiff was “visibly agitated” and demanded to know why SMSgt Pivirotto could not print the numbers because he “sat so close to the printer.” (See Doc. 46-D-1 at 1.)

         Plaintiff said, “You want the Black man to do it, I've got something for you.”[4] (See id.) Plaintiff left work on March 26 without printing the call-in numbers, and he did not return to work on March 27, 2014. (See Docs. 56-F-2; 56-F-3; 46-C at 56:22-57:5.)

         Suspension of Plaintiff's Unescorted Access to Restricted Areas, Access to the Local Area Network (LAN), and Access to the Secret Internet Protocol Router (SIPR) and Non-classified Internet Protocol Router (NIPR) Accounts

         Based on Plaintiff's “alleged insubordination and failure to follow direction[, ]” Col Barney issued a memorandum on March 31, 2014, notifying Plaintiff of the decision to remove his “access to classified information[, ]” including his “unescorted access to restricted areas” and his access to the LAN and all SIPR and NIPR accounts. (See Doc. 46-A-2.) Col Barney stated that he would “evaluate the incident and make a security determination” regarding Plaintiff's access after “the initial investigation in this case has been completed . . . .” (See id.) The memorandum informed Plaintiff that he had 72 hours to provide a rebuttal reply. (See id.) Plaintiff signed and acknowledged receipt of the memorandum and indicated he intended to file a reply. (See id.)

         On April 2, 2014, Plaintiff emailed Col Barney and asked for statements or documents pertaining to the investigation, names of accusers/witnesses, etc. (See Doc. 46-A-3.) Col Barney advised Plaintiff to contact Mr. Nivens, the Security Manager, to obtain any requested documentation. (See id.) He also advised Plaintiff to contact Capt Brenoskie. (Id.) Plaintiff never submitted a reply to the memorandum, nor did he seek an extension of the time allowed for his reply. (See Doc. 46 MF Nos. 19-20.)

         Col Barney drafted a follow-up Memorandum for Record on May 19, 2014, explaining in greater detail his decision to remove Plaintiff's access to unrestricted areas, to the LAN, and to the SIPR and NIPR accounts. (See Doc. 46-A-5.) Col Barney cited Plaintiff's “outburst” on March 26, 2014, “where he refused to follow an instruction from his office superintendent, ” Col Barney's perception of Plaintiff's dishonesty on other occasions, and Plaintiff's “abrasive” emails to Col Barney “and others in leadership questioning [their] authority and asserting his position.” (See id.) “It was this misuse of e-mail, and his erratic and irrational behavior that made [Col Barney] concerned for the information [they] protect-principally under [Plaintiff's] administration of [their] networks and e-mail. . . . By” March 31, 2014, he “was concerned about [Plaintiff's] unpredictability, and the potential for loss or compromise of sensitive data.” (Id.) Col Barney has since sworn that he “did not consider [Plaintiff's] race, age, or prior EEO activity when making [his] decision.” (Doc. 46-A ¶ 22.)

         Placement on Paid Administrative Leave

         Capt Paul Dinkins replaced Capt Brenoskie as the Commander of the 377th Security Support Squadron in early April 2014 and served as supervisor to both Plaintiff and SMSgt Pivirotto. (See Docs. 46-A ¶ 3; 46-D ¶¶ 2-3.) Capt Dinkins spoke to SMSgt Pivirotto and reviewed his memorandum about the incident. (See Doc. 46-D ¶ 3.) Capt Dinkins “conducted an informal fact-finding regarding the March 26, 2014[] incident” and concluded that because SMSgt Pivirotto “had tasking authority over” Plaintiff, Plaintiff “was insubordinate[5] when he refused to print out the call in numbers and acted inappropriately when he demanded to know why SMSgt Pivirotto could not print out the numbers himself and threatened Pivirotto by stating that ‘he had something for him.'” (Id. ¶¶ 4-5.)

         Capt Dinkins “contacted Ms. Lyndsay Strong, Employee Management Relations Specialist, at Kirtland's Human Resources (HR) Office for advice on how to proceed.” (Id. ¶ 6.) She gave Capt Dinkins three options: (1) move Plaintiff to another unit; (2) keep him in the same unit but assign him administrative work because he no longer had the necessary access to perform his job; or (3) place him on paid administrative leave. (See id.) Capt Dinkins chose not to reassign Plaintiff “given his recent inappropriate behavior.” (See id.) He declined to assign him to administrative work “because there was not enough work to keep him busy.” (See id.) On April 8, 2014, Capt Dinkins met with Plaintiff to inform him that he was being placed on paid administrative leave beginning on April 9, 2014. (See id.; see also Doc. 46-D-3.) Plaintiff did not lose pay or benefits as a result of being placed on paid administrative leave. (See Doc. 46-C at 126:14-127:3.) Captain Dinkins later attested that he “did not consider [Plaintiff's] race, age, or prior EEO activity when placing him on paid administrative leave.” (Doc. 46-D ¶ 7.)

         Oral Admonishment

         Capt Dinkins met with Plaintiff again on April 15, 2014. (Id. ¶ 9.) Plaintiff “admitted behaving as described” and Capt Dinkins orally admonished[6] him for his conduct and failure to follow orders on March 26, 2014. (Id.) Plaintiff did not lose pay or benefits as a result of being orally admonished. (See id.) Capt Dinkins attested that he “did not consider [Plaintiff's] race, age, or prior EEO activity when orally admonishing” him. (Id.)

         Establishment of Security Information File (SIF)

         On June 2, 2014, Captain Dinkins “made a security determination to establish a [SIF] for” Plaintiff. (Id. ¶ 14.) “A SIF is a collection of documents generated as a result of the discovery or development of unfavorable information that brings into question a person's continued eligibility for a security clearance or access to Sensitive Compartmented Information . . . .” (Id.) Capt Dinkins gave Plaintiff notice via a memorandum that the action was “being taken because of [his] failure to follow orders, documented outbursts and unprofessional and erratic behavior with various members of the Air Base Wing and Squadron leadership[, ]” all of which “led [Capt Dinkins] to question [his] judgment and reliability within this organization.” (See Doc. 46-D-8.) The memorandum noted that Capt Dinkins suspended Plaintiff's unescorted access to restricted areas, to the LAN, and to all NIPR and SIPR accounts. (See id.) It provided that “[w]hen all final actions in this case have been completed the Air Force Central Adjudication Facility [(CAF)] will make the final security determination concerning [Plaintiff's] clearance eligibility.” (Id.) Plaintiff signed and indicated his intent to submit a written reply within 72 hours. (See id.) Plaintiff ...

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