United States District Court, D. Maryland
STANFORD B. HOOKER, Plaintiff,
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (GSFC), Defendant.
ELLEN L. HOLLANDER, District Judge.
Stanford B. Hooker, Ph.D., plaintiff, filed suit against his employer, the National Aeronautics and Space Administration ("NASA"), defendant, alleging that NASA violated the Privacy Act, 5 U.S.C. § 522a, in its investigation of allegations of Hooker's workplace misconduct. See ECF 1 ("Complaint"). The essence of plaintiff's claim is that, in conducting its investigation, NASA failed to collect information directly from Hooker "to the greatest extent practicable, " as required by the Privacy Act. Hooker asks the Court to "retroactively reverse each of the adverse determinations and effects of the Agency's Privacy Act violations, with backpay, benefits, interest, and a clean record." Id. at 52. He also requests monetary damages and attorney's fees. Id.
NASA filed a Motion to Dismiss, or in the Alternative, For Summary Judgment, along with a supporting memorandum (ECF 22-1), and exhibits (collectively, "Motion"). Hooker filed an opposition to the Motion ("Opposition" or "Opp., " ECF 24), also with exhibits, and NASA replied, with exhibits. See ECF 25. No hearing is necessary is resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will construe the Motion as a motion to dismiss, and I will grant the Motion. However, I will allow plaintiff to amend his Complaint to add factual support for some of his claims.
On September 30, 1991, Hooker was hired by NASA as an oceanographer. Complaint ¶ 5. Since 2003, Hooker has held the civil service grade of GS-15. By August 16, 2010, Hooker served as Director of the Calibration and Validation Office, Ocean Ecology Laboratory, at the Goddard Space Flight Center ("GSFC") in Greenbelt, Maryland. Id. ¶¶ 6, 23. As of that time, Hooker had been employed by NASA for almost nineteen years and had never been denied a within-grade salary increase, never received a "needs improvement" performance appraisal, and had never been charged with employee misconduct. Id. ¶ 6.
On August 17, 2010, NASA began an investigation of Hooker due to allegations of sexual harassment lodged against him by three employees of Science Systems and Applications, Inc. ("SSAI"), a NASA contractor. Id. ¶ 7. NASA appointed Dr. Charles McClain, GSFC Ocean Ecology Branch Head, to conduct an investigation of the allegations against Hooker lodged by the three SSAI employees who had performed work for Hooker. Id.
Prior to interviewing Hooker, McClain requested that Winfield Decker, the Deputy Program Manager of SSAI, investigate whether Hooker was mentioned in the grant that supported SSAI contractor staff. Id. Decker informed McClain that Hooker was "not mentioned anywhere in the contractual language" of the grant. Id. Hooker alleges that McClain's request "was an attempt to fish for or create contractual improprieties-where none had been established-and to link them to the sexual harassment allegations against Dr. Hooker." Id. And, Hooker alleges that the Decker's involvement violated the Privacy Act because Hooker had not yet been interviewed by NASA about the sexual harassment allegations. Id.
On August 23, 2010, McClain notified Hooker that he was under investigation. Id. ¶ 8. McClain advised that the investigation was triggered by allegations of sexual harassment made against Hooker in connection with Hooker's actions during a field campaign to the Arctic in June and July 2010. Id. ¶ 8. Hooker asked McClain to further explain the allegations made against him, but McClain declined to elaborate. Id. Hooker was also informed by McClain that he would be isolated from the SSAI employees with whom he worked and would no longer be permitted to see or talk to these SSAI employees. Id. Two days later, on August 25, 2010, Hooker contacted NASA Chief Counsel Robert Stephens to find out more about the allegations lodged against him and to determine his rights and responsibilities with respect to the investigation. Id. ¶ 9. Stephens informed Hooker that Hooker was alleged to have used "harsh language" with a coworker, but did not inform Hooker of his rights or his responsibilities. Id.
Robert Young, whom NASA appointed as Fact Finder in the investigation, interviewed Hooker on August 27, 2010. Id. ¶ 10. At the time of the interview, Young had already interviewed five SSAI employees who had worked with Hooker. Id. Young told Hooker that Hooker was being investigated for two inappropriate comments Hooker allegedly made in early July 2010 to Aimee Neeley, a SSAI employee. Id. According to Hooker, the allegations were, id.: (1) that Hooker made a comment indicating that Neeley's "butt crack" was showing; and (2) that Hooker used "a jerking-off' double entendre with [his] shipmates, one of whom was jerking on the body zipper of a dry suit worn by another, such that the other was jumping around like a puppet on a string." Young questioned Hooker about these incidents. Id. In addition, Young questioned Hooker about "a stale incident from a year earlier that Dr. Hooker had already reported to management and for which NASA had not taken any timely discipline against Dr. Hooker." Id. (emphasis omitted).
On September 9, 2010, McClain informed Hooker that there would be a "broader inquiry" to the investigation. Id. ¶ 12. McClain sent an email to his colleagues on September 10, 2010, indicating that Hooker had not been informed about approximately 35 additional allegations of misconduct that had been lodged against him. Id. ¶ 14. On September 21, 2010, Dr. David Adamec, Hooker's supervisor, cancelled Hooker's trip "to support the mobilization for the GEOTRACES field campaign, " which was scheduled for October 9, 2010. Id. ¶ 16. Instead, Dr. Joaquin Chaves, an SSAI contractor, was sent to represent Hooker at the GEOTRACES field campaign. Id. Chaves attended the GEOTRACES field campaign but, according to Hooker, collected data that was "of such low quality that it was scientifically useless for Dr. Hooker's areas of responsibility and scientific objectives." Id.
On September 21, 2010, McClain directed Decker to interview additional NASA contractors who had worked with Dr. Hooker, "thereby disclosing the allegations against Dr. Hooker and further damaging Dr. Hooker's professional reputation." Id. ¶ 17. Over the next few weeks, several other third parties were interviewed about Dr. Hooker's workplace behavior. See id. ¶¶ 17-22, 24-25.
On October 5, 2010, Young produced a Supplemental Report of Investigation. Id. ¶ 22. However, this document was not disclosed to Hooker until almost a year later. Id. A week after the Supplemental Report of Investigation was prepared, McClain notified Hooker by email that Hooker would be removed as Director of the Calibration and Validation Office and would be replaced by McClain. Id. ¶ 23. On October 28, 2010, McClain resigned as the lead investigator into the allegations against Hooker and was replaced by Adamec. Id. ¶ 26. On November 8, 2010, Adamec informed Hooker that he would be denying Hooker his within-grade salary increase. Id. ¶ 30.
Adamec sent Hooker a document on December 2, 2010, detailing the allegations of misconduct lodged against Hooker and the discipline proposed as a result of these allegations ("Proposed Suspension"). Id. ¶ 32. The Proposed Suspension included thirty-seven allegations of misconduct committed by Hooker and proposed that Hooker be suspended for three days, without pay. Id. ¶ 33. At the time the Proposed Suspension was issued, Hooker had only been questioned about eight of the thirty-seven allegations included in the Proposed Suspension. Id. Hooker alleges that, over the next several months, he was removed from several projects, denied opportunities to work on others, and was again denied his within-grade salary increase. See id. ¶¶ 34-45.
On January 28, 2011, Hooker provided a written and an oral reply to the Proposed Suspension to the NASA Deciding Official, Dr. Dorothy Zukor. Id. ¶ 37. Hooker's attorney was present during the oral reply. Id. "In Dr. Hooker's original and subsequent sworn Declarations, he has specifically responded under penalty of perjury to each allegation of misconduct set forth in the Proposed Suspension, and directly rebutted and denied the vast majority of the allegations made against him." Id. Hooker acknowledges that he admitted to two of the allegations, although he does not specify the allegations to which admitted. Nevertheless, he claims that they both "have significant mitigating factors." Id.
Adamec notified Hooker on April 18, 2011, that he would receive a "Needs Improvement" performance appraisal for the 2010-2011 performance cycle. Id. ¶ 46. Furthermore, on May 26, 2011, McClain informed Hooker that the Calibration and Validation Office would be moved to a new facility. Id. ¶ 49. As a result of the move, Hooker was told that his laboratory space would be significantly reduced. Id. On July 8, 2011, NASA, through its agents, delayed Hooker's ability to travel to Annapolis, Maryland in support of a field campaign in the Chesapeake Bay scheduled for later that month. Id. ¶ 51. Consequently, Hooker missed a portion of the field campaign. Id. According to Hooker, the reason NASA delayed Hooker's travel was to "entrap him in a violation of travel requirements." Id.
On August 10, 2011, Zukor upheld the Proposed Suspension. See id. ¶¶ 55-57. Subsequently, plaintiff filed a union grievance over Zukor's decision to impose the three-day suspension. Id. ¶¶ 57, 61. His grievance was denied in separate grievance ...