UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

__________________________________________ ) J OHN GA RD, ) ) Plaintiff, ) ) v. ) Civil Action No. 00-1096 ( PL F) ) UNI TED STATES DEPARTMENT OF ) EDUCATI ON, ) ) Def endant. ) __________________________________________)
OPI NI ON This matter is befor e the Court on the motion of the de fenda nt, the United States Depa rtment of Educ ation, for judgment on the pleading s or, in the alter native, for

summary judgme nt. Upon considera tion of the parties’ arg

uments, the rele vant leg al authorities, and the entire r ecor d in this case, the Court conc ludes that plaintiff John Gard has fa iled to identify any g enuine issues of material fa ct that would pre vent the pre trial entry of judg ment for the defe ndant. Consequently , the Court will gr ant the def endant’ s motion and enter judg ment for 1 the Depa rtment of Educ ation.

The pa pers r eviewe d by

the Court include the f

ollowing: plaintiff’ s complaint 1 (“Compl.”); de fenda

nt’s motion for judgme nt on the pleading s or, in the alter native, for

summary judgme nt (“MSJ ”); de fenda nt’s Statement of Material Fa cts Not in Genuine D ispute (“DSMF ”); plaintiff’s opposition to defenda nt’s motion (“Opp.”) ; plaintiff’s Statement of Mate rial F acts in Dispute (“PSMF” ); defe ndant’s re ply in support of its moti on (“Reply”); a nd plaintiff’s surr eply (“Surr eply”).I . BA CKGROUND The followingsummary

of fa cts is based on (1) statements in the def endant’ s Statement of Mater ial Fa cts Not in Genuine D ispute that were not contested by the plaintiff, and (2) doc uments whose authe nticity has not bee n disputed by the plaintiff: Plaintiff J ohn Gar d is now and wa s duringall rele vant per iods employ ed as a n
acc ountant by

the def endant De partment of E ducation (“ DOE” ). DSMF ¶ 1. In November

1997 and May 1998, Mr. Gar d contac ted var ious feder al g overnme nt officials, includingemployees of DOE’s O ffice of the Inspector G ener al, and a lleg ed that DOE ’s flaw ed and ina dequate
acc ounting sy stems and sec urity wer e fa cilitating f

inancial mismanag ement. MSJ , Ex . 26 at 5; Compl. ¶ 7. At least some of Mr. Ga rd’s a lleg ations conce rningfinanc ial mismanag ement we re later substantiate d by

the United States Off

ice of Special Counsel. DSMF ¶ 15. On May 8, 1998, a cow orker

of Mr. Ga

rd ema iled their joint supervisor, Janice Steinbrueck, a

nd claimed that Mr. G ard ha d become “‘irate’” with him and acc used him of tamperingwith Mr. Gar d’s computer . DSMF ¶ 24. On June 17, 1998, Ms. Steinbrueck wr ote a memorandum for

inclusion in Mr. Gard’ s personne l file. See id. ¶ 45; MSJ , Ex . 12 at 1. She claimed in that memora

ndum that on J une 16, 1998, she a nd two other c oworke rs had g one to Mr. Gar d’s offic e to discuss the oper ation of DOE’ s acc ounting softwa re. MSJ , Ex . 12 at 1. Acc ordingto Ms. St einbrue ck, Mr. Ga rd quickly

beca me “hostile” during this mee ting a nd beg an “y elling” and displaying “ extreme ang er.” I d. at 1-2. Ms. Steinbruec k claimed that she was “ver y conce rned f

or the we lfare (phy sical saf ety ) of those w orkingclosely with J ohn, including my self.” I d. at 2.

2On J une 17, 1998, Ms. Steinbruec k and a c oworke r, Maur een Smith, met with Mr.

Gar d in Ms. Sm ith’s office to warn him that y elling a t colleagues at wor

k was inappr opriate. DSMF ¶ 65. The next day , Ms. Steinbrueck pre pare d a memora ndum for Mr. Ga

rd’s pe rsonnel file in which she de scribed he r re collection of the previous day ’s meetingwith Mr. Gar d. See DSMF ¶ 65; Ex. 2 at Bate s 1553. Acc ordingto that memorandum, Mr. Ga rd bec ame “ violently ang ry” af ter Ms. Steinbruec k told him t hat she found his be havior of the previous day “unac cepta

ble.” I d. Ms. Steinbrueck c laimed that Mr. Ga rd had de nied that he ha d y elled the day befor e and the n had asse rted that Ms. Steinbruec k’s admonishment of him was in re ality an act of “re prisal” f

or his whistle-blowing . I d. Also on on J une 17, 1998, anothe r cow orker , J eanne J ohnson, sent an ema il to Ms. Steinbrueck in which she descr ibed an incide nt that had just occurr ed. See MSJ, Ex . 31, Attach. 4; DSMF ¶

¶ 49-50. She a lleg ed that Mr. Ga rd had “ stomped” into her of fice , “so angry that his face was tre mbling,” a nd acc used her

of improper ly

behavingas a “ manag ement repr esentative” eve n though she was off icially a re prese ntative of he r union. I d. He then “stormed a

way .” I d. On J une 18, 1998, anothe r cow orker of Mr. Ga

rd, Ora Alg er, submitted to supervisors a

“memo to file” in which she a lleg ed that she “ fea r[ed] and believ[ed] that [her]
co-w orker

J ohn Gar d [was] unbalanc ed in his views and pe rce ptions of [ her] and towar ds [her]” beca use he r epea

tedly acc used her

of “using[her] posi tion in the union to enhance [her] ca ree r, . . . and as a

tool ag ainst him personally .” MSJ , Ex . 32, Attachment 3 at 1. She claimed to fe ar that Mr. Gar d was a

threat to her phy sical saf ety . I d. She then alleg ed that, shortly afte r the August 1995 bombing of the F eder al B uilding in Oklahoma City , Mr. Gar d had said of the

3bombing, “ [T] hat was c hild’s play , it was nothing c ompare d to what I could do. . . . I

could ea sily take out seve n blocks around he re, a nd no one would know it. . . . I used to be a

demolition expert for the Army

in Nam and they

trained me well.” I d. Acc ordingto Ms. Alge r, she ha d decide d to report this enc ounter with Mr. Ga rd bec ause, a fter he aringof Mr. Ga rd’s June 16, 1998 confr ontation with coworke rs, she wa s becoming“fe arf ul beca use his temper a

nd
acc usations are intensifying.” I d. at 2. She furthe r re ported that “ [i ]thas bee n rumored that J ohn has a me ntal disorder c ause[d] by his tour in Viet Nam,” a

nd sug g ested that he might nee d assistance with that condition. I d.

On J une 19, 1998, Ms. J ohnson wrote a n email to her supe rvisors and to human
resour ces pe rsonnel in which she expressed “c oncer n[] for the w elfa

re of Caroly n Ashby ,” a
cowor ker. D SMF ¶ 52; MSJ , Ex . 31, Attach. 5. She state d that Ms. Ashby had witnessed the J une 17 conf

rontation betwe en Ms. J ohnson and Mr. Ga rd and “ was ve ry

frig htened” beca

use “she a nd [Mr. Gard] ha[d] a longhistory of conf rontational problems[] that wer e neve r addr essed by manag ement. [Ms. Ashby ] said that she . . . ha[d] been c rying a nd upset” since the J une 17 incident. I d. Duringthe time that Mr. Gar d’s cowor kers we re de scribinghis behavior in these various ema ils and memoranda , it was well known in their of fice that Mr. Gar d had filed a whistle-blower

complaint with the Offic e of the Inspector G ener al and the O ffice of Specia l Counsel in May

1998. See DSMF ¶

¶ 37-38, 41. Mr. G ard ma de cle ar to DO E offic ials that he believed himself to be a victim of re taliation. In an ema il to various DOE off icials written on J une 17, 1998, Mr. Ga

rd asse rted that his conf

rontation with Ms. St einbrue ck and two othe r employ ees the previous day had occ urre d beca

use Ms. Steinbrueck ha d come to his offic e “to

4insult and belittl e” him. MSJ , Ex . 35. He c laimed that Ms. Steinbrueck’ s stated re ason for

comingto his office — to a ssist hi m with a problem he sa id he had f ound in their ac counting softwar e — wa s spurious, beca use “[t] here was a

bsolutely no need f or these thr ee e mploy ees to come to [his] office with the purpose of telling” him how to use the softwar e; he kne w “how to
acc omplish” all of the re levant “f unctions.” He char acte rized the entry of Ms. Steinbrueck a

nd the other e mploy ees into his office as an a ct of “ repr isal” and de clar ed that he did “ not have to and [was] not goingto put up with” it. I d. Also on J une 17, 1998, Mr. Ga rd sent an e mail to the Secre tary and a D eputy

Secre tary of DOE in whic h he alleg ed that he ha d been c alled into a meetingthat day

with Ms. St einbrue ck and Ma uree n Smit h. He state d that he “f elt duringthe meetingthat Maure en Smith’s statements were designed to intimidate and threaten” him, and that “[a]ccording ly ,” the mee ting “ constitute[d] an additional instance of re prisal.” MSJ , Ex . 36 at 1. Acc ordingto Mr. Gar d, Ms. Steinbrueck or Ms. Smith told hi m that he “wa s unqualified, that [he] had not demonstrate d any leade rship ability

or the a bility to ge t alongwith people, that [he] was not qualified to be a tea m leader and that [he] was a threa t.” I d. Mr. Gar d claimed that he “wa s beingwar

ned that if [he] continued to provide . . . information to and/or a ssist t he Of fice of Inspector G ener al[,] . . . manag ement would take adver se ac tion ag ainst me.” I d. at 2.

On J une 19, 1998, seve ral DO E employ ees, inc luding “ repr esentatives from the Offic e of Ma

nag ement . . . and the Offic e of G ener al Counsel” met to discuss the ema ils circ ulated by

Mr. Gar d and his cowor

kers r eg ardingthe conf

rontations that had occ urre d over the prec edingfewday s. DSMF ¶¶ 74- 75. One of the meeting ’s attende es re ported that DO E’s Chief Financ ial and Chief Information Of fice r, Dona ld Rappaport, had be en hea rd makinga comment
conce rningMr. Gar d and a gun. I d. ¶ 76. The me etingparticipa nts decided that DOE’s Of fice of

5Gene ral Counsel and some of its human resourc es per sonnel should investigate the situation
conce rningMr. Gar d further . I d.

After that meeting , Paula L elansky , a DOE employee who had attende d the meetingand who spe cialized in various human re source s issues, review ed Mr. Ga rd’s pe rsonnel file. DSMF ¶

¶ 71, 74, 79. She then c ontacted D r. Ne al Presant, a doctor unde r contra ct with DOE a s the Depa

rtment’s “me dical re view off icer .” I d. ¶ 79. She fax ed him a memora ndum in which Jeanne Johnson described the June 16, 1998 confr ontation betwee n herse lf, J an Steinbrueck, a

nd another

cowor ker on one side, and Mr. G ard on the other. I d. ¶ 80. In that memorandum Ms. Johns on claimed that Mr. G ard ha d “shout[ed] ” at them, a ccuse d her of usurpinga tea

m leader position t hat should have be en his, “shak[en] his finge r in [her] face ,” and finally decla red that he “‘ would take c are of all of [y ou].’” MSJ , Ex . 7, Attach. 1 at 1-2. Ms. J ohnson expressed conc erns ove r Mr. Ga rd’s “ rag e” a

nd “irrational, para

noid behavior.” I d. at 2. In addition to that memorandum, Ms. L elansky also faxed to Dr. Presa

nt a form from Mr. Ga

rd’s file that was entitled “H ealth B enef its Registration F orm,” whic h she appa rently found sug g estive bec ause Mr . Gar d wrote “None now” under “Names of family members.” See MSJ , Ex . 7, Attach. 2; DSMF ¶ ¶ 80-81. Af

ter re viewingthe documents sent to him by Ms. L elansky , Dr. Presa

nt warne d her tha

t Mr. Gar d could be a

threat to his coworker s and advised that Mr. Gar d be “r emove[d] . . . from the work plac e” to pr otect those who w orked w ith him. DSMF ¶ ¶

83-84. He sug g ested that Mr. G ard be barr ed fr om the office until “medical documentation” f

rom Mr. Ga

rd’s own phy sician could be revie wed. I d. ¶ 84. After speakingwith Ms. L elansky , DOE’s Chief Financ ial and Chief Information Offic er sig ned a le tter plac ing Mr . Gar d on paid administrative leave on June 19, 1998. DSMF

6¶ 90. The le tter wa s sent by Fe dera l Ex press to Mr. Ga rd, who wa s awa

y from wor k, on the same day , but Mr. Gar d did not rece ive it before repor ting to the of

fice for wor

k on J une 22, 1998. I d. ¶ 90, 93. Mr. Ga

rd wa s also formally

banned f rom DOE’ s buildings; a docume nt saying so w as provided to the sec urity

g uards posted at the buildings’ e ntranc es. I d. ¶¶ 91- 92. Mr. Gar d repor

ted for w ork on June 22, 1998, unawar e that he ha d been pla ced on administrative leave . DSMF ¶ ¶ 93-94. Ms. L elansky

lear ned of his pre sence , and a c opy of the J une 18, 1998 letter

placingMr. Gar d on administrative leave was de livered to him in person a s he wa s meetingwith employ ees f rom the Off

ice of Inspector G ener al re g ardinghis whistleblower c laims. I d. ¶ 96. F eder al Protective Ser vices off icer s then escor

ted Mr. Ga

rd fr om the building. I d. ¶ 97.

After Mr. Gar d’s re moval from the wor kplace , various DOE employ ees c ontinued to discuss his si tuation. See DSMF ¶ ¶ 101-06. Mr. Ga

rd’s leg al counse l communicated with DOE re peate dly

reg ardinghis client’s work status. I d. ¶¶ 104- 09. In October 1998, Danny Har ris, Mr. Gar d’s “se cond-le vel” supe rvisor, invited Mr. Ga rd to meet with him later that same month to dis cuss “possible wor k assig nments” for

him. I d. ¶ 111. Mr. Ha

rris also re quested that Mr. Gar d provide c erta in information about his medical c ondition, including “[t] he finding s of a mental status examination and the results of psycholog ical tests.” MSJ , Ex . 37, Attach. 5 at 2. He mentioned a

n email sent by

Mr. Gar d to Ms. St einbrue ck on Mar ch 18, 1998, in which Mr. Gar d claimed that he was a bout to beg in taking a

medication “which could have possible adver se side eff ects . . . inclu[ding] heada ches, de pression, hy perte nsion, and mood swings.” I d. at 1. Stating, “I

am conc erne d that there may be re lationship between your medica l condition(s) and y our beha vior in the workplac e,” Mr . Har ris explained that “medica l documentation” would

7“assist us in determiningwhether or not there is a conne ction betwee n medication you are taking and the e vents which took plac e in J une, and whether your medication has been stabilized.” I d. I t is not clear f

rom the re cord whether

the medica l documentation re quested wa s
ever submitt ed by

Mr. Gar d. See DSMF ¶

¶ 113-15. In any

case , Mr. Har

ris permitted Mr. Ga

rd to return to wor

k on Dec ember

21, 1998, id. ¶ 115, and a rra ng ed for Mr. Gar d to be assig ned to a differ ent first-line supe rvisor. MSJ , Ex . 37, Attach. 6. Eve n so, J eanne J ohnson continued to complain to her supe rvisors that Mr. Ga rd wa s attempting to intimidate her, this time by peer ing into her off

ice on his wa

y past her door , DSMF ¶ 119; she f ound this behavior ominous beca use “Mr. Ga rd worke d in another se ction of the floor and had no w ork-r elated r eason to intera ct with Ms. J ohnson or with other pe ople nea r her office .” I d. Upon lear

ning of Ms. J ohnson’s complaints, Mr. Gar d’s new supe rvisor aske d Mr. Gar d to stop using the cor ridor outside Ms. J ohnson’s offic e and to “ ref rain fr om doing a

ny thing that mig ht be construe d by Ms. J ohnson as hara ssment.” I d. ¶ 120.

As these de velopments related to Mr. Gar d’s position at DOE unfolded, Mr . Gar d attempted on multiple occa sions to demonstrate that his employ er w as re taliating a g ainst him for his whistle-blowing a ctivity . On J une 2, 1998, he submitted a whistle-blower c omplaint with the Offic e of Spec ial Counsel. DSMF ¶ 13. L ess than a month later , on J une 30, 1998, he f iled another complaint with the Offic e of Spec ial Counsel, assertingthat his placeme nt on administrative leave as of June 19, 1998 was intended to punish him for “ cooper atingwith and providing evidenc e to the Of fice of the Inspector G ener al.” MSJ , Ex . 22 at 19. He a lleg ed that Fe dera l Protective Service s had bee n used to remove him from a DOE building on June 22, 1998, in order to “ make a

scene , an example out of me a nd to intim idate and c ontrol the other

8employ ees who wer e startingto cooper ate with the OI G.” I d. at 19-20. Reg arding the confr ontations that occurr ed in the fe w day s prec edinghis placeme nt on administrative leave , Mr. Gar d claimed that he was ve rbally “attac ked” by

his coworke rs on J une 16, 1998, and stated that althoug h he wa s “not a phy sical threat to citiz ens, co- worke rs, or [him] self, . . . whe n [he] is attacke d, [he] will defend himself.” I d. at 13. He de scribed his June 17, 1998 meetingwith J anice Steinbrueck a

nd Maure en Smith as “very hot and heated” a

nd added that “[t] he more Maure en Smith tried to int imidate me the more deter mine[d] Ibeca

me that I would not be intimi dated. I

met forc e with like forc e.” I d. at 16. The Of fice of Specia l Counsel informed Mr. Ga rd on September

27, 2001 that it had complete d its investigation of his re taliation claim and dec lined to pursue the matter further
. See DSMF ¶

16; MSJ , Ex . 24. Mr. Gar d then filed a complaint with the Merit Sy stems Protection Boa

rd (“ MSP B” ), ag ain alleg ing r eprisal on the ba sis of his whistl e-blowingactivity
. DSMF ¶ 17. In May

2002, DOE settled Mr. G ard’ s MSP B c omplaint by enter ing into a settlement ag ree ment with him pursuant to which DOE did not admit any wrong doing, but promised that it would (1) make no attempt to transfe r Mr. Ga rd fr om his posit ion before J anuar y 1, 2003; (2) g ive Mr. Ga

rd a Q uality

Step Incre ase in his salar y ; and (3) r efr ain from takingany adver se ac tions ag ainst Mr. Gar d in connec tion with “any incident or c ircumstance of his employ ment” that ar ose and w as known to the a g ency befor e the e ffe ctive date of the settlement ag ree ment. See MSJ , Ex . 27 at 2-3. The ag ree ment purported to r esolve “ all claims” that Mr. Gar d had or mig ht acquire ag ainst the ag ency “on ac count of incide nts or circ umstances of his employ ment arisingbefor e the date” of the agree ment, with the exception of Mr. Ga rd’s “ claims under the Privacy

Act other than issues raise d in his . . . MS PB appe al.” I d. at 4.

9As part of the settlement agree ment, DOE a g ree d that it would not “contest a[n MSP B] finding that [Mr. Gard] was the ‘pr evailingparty ’ with respe ct to th[ e] appea l . . . , nor a Boa rd findingthat any

subsequent aw ard of

attorney s fee s is ‘warr anted in the inter est of justice.’” MSJ, Ex . 27 at 2. In keepingwith that provision of the agree ment, an administrative law judg e found, w ithout ex amining the merits of Mr. Ga rd’s c laims, that the MSP B ha d jurisdiction over Mr. Ga

rd’s c omplaint — and hence to enforc e the r elated se ttlement ag ree ment — beca use “the rec ord establishes by preponde rant e vidence that the appe llant eng ag ed in whistleblowing a ctivity

. . .; [ and] that the ag ency took or failed to take , or threatened to take or fail to take, pe rsonnel ac tions as defined in statute.” Opp., Ex. 4 at 1; see Chakravor ty v. Dep’ t of Air F orce , 90 M.S.P .R. 304, 308 (MSP B 2001) (under prec edent in ef

fec t at that time, an appellant makingclaims of re prisal re lated to whistle-blowingactivity was re quired to establish jurisdiction by

preponde ranc e of the evidenc e). The a dminist rative la w judg e then e ntere d the 2 settlement ag ree ment into the rec ord of the MSPB so that it would be e nforc eable by the B oard. Opp., Ex. 5 at 2.

On May 16, 2000, well bef

ore the conclusion of those pr ocee dings be fore the MSP B, Mr . Gar d filed his complaint befor e this Court, alleg ing that the Depa rtment of Educ ation had violated his rig hts under the f eder al Privacy

Act in the cour se of de cidingthat Mr. Gar d should be place d on administrative leave beg inning on June 19, 1998. Discover y beg an in 2000, but the case was stayed for a leng thy period duringthe pende ncy of re lated proc eeding s befor e the MSPB. That stay

was lifted in August 2006, and discover y eventua lly

conclude d in May
Mr. Gar d claims or implies on numerous occ asions in his opposit ion to DOE’s 2 motion for summary

judgme nt that he pre vailed on the merits of his claims before the MSPB. See, e.g ., Opp. at 2, 14, 15; PSMF ¶ 22. That a ssertion is clear ly wrong , as the mer its of Mr. Gar d’s MSPB complaint wer e neve r litiga ted. 102008, afte r which the defe ndant filed the pe nding motion for judg ment on the pleading s or, in the

alternative, for summary

judgme nt.
I I . L EGAL

STANDARD Summary judgme nt may

be g rante d if “the ple ading s, the discover y and disclosure materia ls on file, and any aff idavits [ or dec larations] show that there is no ge nuine issue as to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(c) ; see a lso Anderson v. L iberty L obby , Inc., 477 U.S. 242, 247-48 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D .C. Cir. 2006). “A f act is ‘mate rial’ if a

dispute over it might 3 aff ect the outc ome of a

suit under the g overninglaw; fa ctual disputes that ar e ‘irr eleva nt or
unnece ssary ’ do not aff

ect the summar

y judgme nt determination.” H olcomb v. Powell, 433 F.3d at 895 (quotingAnder son v. L iberty L obby , Inc., 477 U.S. at 248). An issue is “g enuine” if the evidenc e is such that a r easona ble fa ctfinder

could re turn a ve rdict for the nonmoving pa

rty . See Scott v. Harris, 550 U.S. 372, 380 (2007) ; Anderson v. L iberty L obby , Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895.

When a motion for summary judgme nt is under consider ation, “the e vidence of the non-movant is to be believe d, and all justifiable infe renc es ar e to be dr awn in [his] favor .” Ander son v. L iberty

L obby , Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec tric Power Co., 447 F.3d 843, 849-50 ( D.C. Cir. 2006); Aka v. Washing ton Hospital Center, 156 F .3d 1284, 1288 (D.C. Cir. 1998) ( en banc ); Washington Post Co. v. U.S. Dep’t of Hea lth and Human Service s, 865 F.2d 320, 325 (D .C. Cir. 1989). The nonmoving party ’s opposition, however, must

The Court dec ides defe ndant’s motion as one for summary judgme nt under Rule 3 56, rathe r than a s a motion for judg ment on the pleading s under Rule 12(c ), bec ause it consider s matters outside the plea dings. See F E D . R. C I V . P. 12(d). 11consist of more than me re unsuppor ted alleg ations or denials a nd must be supported by aff idavits, declar ations or other c ompetent evidenc e, settingforth spec ific fa cts showingthat there is a g enuine issue f

or trial. F E D . R. C I V . P. 56(e) ; Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movingparty is require d to provide evide nce that would permit a
rea sonable fa ctfinder

to find in his favor. L aning ham v. United States Navy , 813 F.2d 1236, 1242 (D.C. Cir. 1987). I f the nonmovant’s e vidence is “mere ly colora ble” or “not sig nificantly probative,” summary

judgme nt may

be g rante d. Ander son v. L iberty L obby , Inc., 477 U.S. at 249-50; see Scott v. Ha

rris, 550 U.S. at 380 (“ [W ]here the r ecor d taken a s a whole c ould not lead
a rational trier of f

act to find for

the non-movingparty , there is ‘no g enuine issue f or trial.’” ) (quoting Matsushita Electric Industrial Co. v. Ze nith Radio Corp., 475 U.S. 574, 587 (1986)). To defe at a motion for summary judgme nt, plaintiff must have more tha n “a sc intill a of e vidence to support his claims.” Fr eedma n v. MCITelec ommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001). Under

the L ocal Civil Rules of this C ourt, a pa rty moving f or summary

judgme nt must submi t “a state ment of material fac ts as to which the movingparty contends ther e is no g enuine issue.” L oc. Civ. R. 7(h)(1). F or its part, the nonmovingparty must file “a se parate concise statement of g enuine issues settingforth all mater ial fac ts as to which it is contended there exis ts a g enuine issue ne cessa ry to be litigate d.” I d. In ruling on the motion for summary judgme nt, the Court “may assume that fa cts identified by the moving pa

rty in its st atement of materia l fac ts are a dmitted, unless such a fa ct is controver ted in the statement of g enuine issues filed in opposition to t he motion.” I d. In this case, the de fenda nt has filed a de tailed statement of fac ts addressing , amongother thing s, the eve nts leadingup to Mr. Gar d’s place ment on

12administrative leave in J une 1998. See D SMF ¶¶ 24- 90. Mr. Gar d’s statement of f acts that a re alleg edly in dispute with respec t to those events fa ils to specifically contest many

of the fa ctual repr esentations made by

the def endant; instead of

pointing to re cord e vidence that undermines the def endant’ s repr esentations, Mr. Gard r esorts to name- callingand unsupported a ccusations. See, e.g ., PSM F ¶ 16 (dee ming the c laims of Ora Alg er a nd J eanne J ohnson “spurious” without addre ssing the substanc e of those c laims); ¶ 34 (ca lling Dr . Presant’s state ments reg ardingMr. Gar d “pre posterous” w ithout offeringany evidenc e re futing those statements). Where Mr. Gar d has fa iled to respond to asser tions contained in the def endant’ s statement of mate rial fa cts, or has responde d only

with conclusory

denials, the Court has a cce pted the def endant’ s assertions as prese nting no que stions of fact suitable f or litigation at a trial.
I I I . DI SCUS SI ON As the D.C. Circuit has explained: The Privac y

Act saf eguards the public f

rom unwar

rante d collection, maintena

nce, use and dissemination of per sonal information containe d in ag ency rec ords. It does so by

allowingan individual to participate in ensur ing that his recor ds are acc urate and prope rly

used, and by

imposing re sponsibili ties on fede ral ag encie s to maintain their rec ords ac curately
. Ba rtel v. F ed. Aviation Admin., 725 F.2d 1403, 1407 ( D.C. Cir. 1984) (footnotes omitted). One way the Act “ safe g uards the public f rom unwar

rante d . . . dissemination of persona l information” is by restric ting the ma

nner in whic h ag encie s may maintain, use, and disclose “re cords” about an individual maintained within a “sy stem of re cords.” 5 U.S.C. § 552a(b).

13The Privac y Act enume rate s four sce narios in which a n individual may

sue in district court to reme dy

a violation of the statute. See 5 U.S.C. § 552a(g )(1) . Two ar e re levant here : . . . Whenever any ag ency

. . . (C) fa ils to m aintain any

rec ord conc erningan individual with such ac cura cy , rele vance , timeliness, and completene ss as is nece ssary to assure f

airne ss in any

deter mination relatingto the qualifications, chara cter , rig hts, or opportunities of, or bene fits to the individual that may

be made on the basis of such r ecor d, and conseque ntly

a dete rmination is made which is adve rse to the individual; or (D) f ails to comply

with any other provision of this section, or any rule promulg ated ther eunder , in such a wa y as to have an adver se ef

fec t on an individual, the individual may

bringa civil ac tion ag ainst the ag ency . 5 U.S.C. § 552a(g )(1) (C), (D) . A plaintiff may rec over mone y

damag es under

Sections 552a(g )(1) (C) and 552a (g )(1) (D) only if he de monstrates that an a g ency violated one or

both provisions “intentional[l y] or willful[ ly ].” 5 U.S.C. § 552a(g )(4) . Equitable re lief is not available under e ither provision. See Doe v. Stephens, 851 F.2d 1457, 1464 ( D.C. Cir. 1988). 4

Injunctive re lief is available in a proc eedingbrought pursuant to 5 U.S.C. 4 § 552a(g )(1) (A) or

552a(g )(1) (B ), see 5 U.S.C. § 552a(g )(2) , (g )(3) , but the plaintiff does not purport to proc eed unde r either of those provisions. He ne verthe less reque sts injunctions (1) “ [o] rder [i ng ] Defenda nt to remove . . . fr om its records a ll documents pertainingto Plainti ff that are deter

mined to be inacc urate ,” Compl. at 14; (2) “[e]njoin[ ing] Def endant f rom continuing to maintain r ecor ds reg ardingPlaintiff in violation of the Privacy Act,” id. at 14-15; and (3) “[e]njoi n[i ng ] Defenda nt from continuingto eng ag e in furthe r conduc t in violation of the Privacy Act.” I d. at 15. Since the plaintiff doe s not procee d under pr ovisions of the Privacy Act that authorize injunctive relief , and he ha s made no attempt to demonstrate that he mee ts the require ments of the provisions that do authorize such re lief, he obviously cannot obtain the order s he re quests. 14Mr. Gar d contends that that the de fenda nt is li able to him under both of the fore g oing pr ovisions of the statute beca use DOE e mploy ees use d and/or disclosed his re cords in violation of the Privacy

Act in dec iding to plac e Mr. Ga rd on administrative lea

ve. In particula

r, his complaint alleg es (1) that he wa s subjected to an a dverse ag ency deter mination because of the ag ency ’s fa ilure to maintain his rec ords prope rly , in violation of Section 552a(g )(1) (C), see Compl. ¶ 63, and (2) that he was a dverse ly aff ecte d by violations of the numerous “othe r provision[ s]” of the Privacy Act, in violation of 5 U.S.C. § 552a(g )(1) (D). See Compl. ¶¶ 39, 42, 45, 48, 51, 54, 57, 60.

On the basis of the se cla ims, Mr. Gard se eks dama g es equa l to alleg ed ac tual damag es, or at least equa l to $1,000 per count of his nine- count complaint. See Compl. at 15-16. He a lso requests injunctive re lief in the for m of an orde r (1) requiringDOE “ to remove a nd expunge f rom its recor ds all documents per taining to Plaintiff that ar e dete rmined to be inacc urate . . . or incomplete,” id. at 14; (2) pre ventingDOE “ from continuingto maintain
rec ords re g ardingPlaintiff in violation of the Privacy Act,” id. at 14-15; and (3) prohibiting DO E “fr om continuing to eng ag e in furthe r conduc t in violation of the Privacy Act.” I d. at 15. The de fenda

nt argues that Mr. Ga

rd’s Privac y

Act cla ims are pr eempted by the Civil Service Reform Ac t of 1978 (“CSRA”), Pub. L . No. 94-454, 92 Stat. 1111 (codif ied as amende d in scattere d sections of Title 5 of the United States Code), be cause they conce rn the “same [allege dly ] prohibit ed per sonnel prac tices” that ga ve rise to his whistle-blowe r cla ims befor e the MSPB — name ly , his placeme nt on adminstrative leave , his removal fr om DOE’s office building by

Fe dera l Protective Service s office rs, and the c irculation amongthe building’ s
secur ity g uards of a memora

ndum announcingthat Mr. Gar d was ba nned fr om the building. MSJ 15at 18. B ut while the “CSRA deprives the district c ourt of jurisdiction to reviewprohibited

personne l prac tices,” Hubbard v. EPA, 809 F .2d 1, 5 (D.C. Cir. 1986), it does not, contra ry to the defe ndant’s sug g estion, nece ssarily pree mpt Privacy

Act cla ims sim ply

beca use the fa cts underlying those claims conc ern, in pa rt, prohibited per sonnel prac tices. Where a plaintiff claims that his damag es flowe d from an “ adver se per sonnel ac tion” that was a lleg edly “ actually cause d by an inac cura

te or incomplete rec ord,” his Privac y Act cla ims are not pre empted by the CSRA and may proce ed in district court. I d. (orig inal emphasis). At the same time, howe ver, the Privacy Act is not to be used as a n end run a

round the compre hensive re medial sche me cr eate d by the CSRA to address fede ral e mploy ment disputes. See Hubbar d v. EPA, 809 F.2d at 5. To ensure that the plaintiff has not mer ely disguised a

complaint g overne d by

the CSRA as a serie s of claims under the Privacy

Act, it is
nece ssary to scrutinize closely

any “asse rted c ausation link” betwe en the Privac y Act violations alleg ed and a dverse fede ral pe rsonnel ac tions. I d. Thus, Mr. Gar d’s claims must fail to the extent that he has not produce d any evidenc e supportinga re asonable infere nce that a Privacy Act violation its elf a ctually

cause d the adve rse e vents of which he complains.
A. Mr. Gard’s Claims Under 5 U.S.C. § 552a( g) ( 1) ( C) To preva il on a claim under 5 U.S.C. § 552a(g )(1) (C), Mr. Ga rd must prove that: (1) he has bee n ag g rieve d by an adve rse de termination; (2) the [age ncy ] failed to maintain his recor ds with the deg ree of ac cura cy nece ssary to assure f

airne ss in the determination; [and] (3) the [age ncy ’s] reliance on the inacc urate rec ords was the proxi mate cause of the a dverse deter mination. . . . Chambers v. De p’t of Interior, 568 F .3d 998, 1007 (D.C. Cir. 2009) (inter nal quotation marks and citation omitted). I f the c laim is for damag es, the plaintiff must also prove that “the [ag ency]
16acte d intentionally or willfully

in failing to maintain acc urate rec ords.” I d. Two counts of Mr
. Gar d’s complaint conc ern a n alleg ed violation of Section 552a( g )(1) (C). Count I X is a rote
rec itation of the languag e of tha t provision, along w ith an unadorne d asser tion that the defe ndant violated it. See Compl. ¶ 63. Count V alleg es a violation of 5 U.S.C. § 552a(e )(5) , which provides that an a g ency

may “maintain in its recor ds only such information about an individual as is rele vant and ne cessa ry to acc omplish a purpose of the a g ency require d to be ac complished by statute or by

executive orde r of the Pre sident.” See Compl. ¶ 51. Claims predicated upon violations of Section 552a(e )(5) , howeve r, must be broug ht under 552a (g )(1) (C). De ters v. U.S. Parole Comm’n, 85 F.3d 665, 660 ( D.C. Cir. 1996). Count V theref ore is entire ly

duplicative of Count I X. Mr. Gar d claims that he “ suffe red a dverse actions whe n Def endant ba nished him from the wor

kplace and, subseque nt to his reinstatment, denied him employ ment and tra ining opportunities.” Opp. at 18. Mr. G ard’ s submissi ons, howeve r, ar e devoid of any evidenc e of specific “employ

ment and tra ining oppor

tunities” denied to him by the def endant. His c laims under Sec tion 552a(g )(1) (C) there fore may challeng e only

what he f ancif ully calls his “banish[ment] ” — the a g ency ’s deter mination to place him on administrative leave with pay in J une 1998. Mr. Ga

rd’s c laims based on that dete rmination fail, howeve r, bec ause Mr . Gar d has failed to identify

any evidenc e sug g esting that the ag ency relied on ina ccur ate r ecor ds in making that deter mination, or that any

such re liance w as the “ proxi mate ca use of the a dverse deter mination.” Chambers v. De p’t of Interior, 568 F .3d at 1007. Althoug h the re cord doe s not, so far as the Court has be en able to asce rtain, conta in a detailed list of the doc uments review ed by DOE off icials in J une 1998 as the y assessed Mr . Gar d’s workpla ce be havior, pre sumably they considere d the emails and me moranda conce rningMr. Gar d that wer e pre pare d by his coworke rs. 17Mr. Gar d ref ers to those doc uments many times in his oppos ition to t he def endant’ s motion as “scur rilous” and de rides them as be ing f ull of “hea

rsay and innuendo,” see O pp. at 22, but he points to no evidence implying that any specific statements made in those doc uments are false or inacc urate . Indeed, in the twe nty -pag e af fidavit he ha s submitt ed in support of his opposition, he makes a bsolutely no attempt to deny

the occ urre nce of

the conf rontations betwee n cowor kers descr ibed in the documents, or to identify any specific inacc urac ies containe d in his coworker s’ descr iptions of those confrontations. S ee O pp., Ex . 19.

Mr. Gar d complains on sever al occ asions that DOE off icials did not interview him
conce rninghis confrontations with coworker s befor e dec iding to plac e him on administrative leave , see O pp. at 25, but that contention only raises a n obvious question: what would he have said duringsuch an inter

view that would have demonstrated the exis tence of “ina ccur acie s” in his recor ds? He implies in his opposit ion — although not in any piece of re cord e vidence , such as his aff idavit — that he would have disputed the statements of some c oworke rs that he ha d “y elled” at them, beca

use “the re a

re c onflicts conce rningwhat constitutes ‘yelling.’ ” I d. at 14. But a differ ence of opinion as to whether a per son is y elling or

mere ly using a voice that is “de ep and ver y firm,” a s Mr. Gar d has cha rac terized his speec h toward Ms. Johnson, MS J , Ex . 22 at 12, is not the sort of objective inac cura cy targ eted by

the Privacy

Act. See Mue ller v. Winter, 485 F.3d 1191, 1198 ( D.C. Cir. 2007) (“‘ [T] he Privac y Act allows for

amendment of

fac tual or historical er

rors. It is . . . not a vehicle for amending

the judgments of fe dera l officials or . . . other[s] .’” ( citation omitted)).

Mr. Gar d’s conc lusory

claims that rec ords re viewed by his supervisors wer e inacc urate sug g est another question: what alleg ed inac cura cies we re so mate rial that their
corr ection would have preve nted the ag ency from plac ing him on administrative lea ve? Having 18failed to supply evidenc e sug g esting the exist ence of anyinacc urac y , Mr. Gar d obviously has not attempted to identify

an inac cura cy

so serious that it actually cause d him to be placed on le ave. This failure is fatal to his claim; withoutproof of a ca usal link betwee n the adve rse pe rsonnel action complaine d of and ina ccur acie s in ag ency rec ords, the plaintiff c annot pre vail under Section 552a(g )(1) (C).

That Mr. Ga

rd has f ailed utterly

to establish such a c ausal link is not surprising, a s “his complaint rea lly

alleg es only

a wr ong ful personne l decision, not an invasion of priva cy .” Hubbar d v. EPA, 809 F.2d at 5. Mr. Gar d truly disputes not the content of the r ecor ds review ed by the ag ency , but the idea that DO E offic ials rea lly could have drawn from those re cords the conclusion they

purported to: that his behavior was suff iciently alar ming to justify

his temporary
remova l from the off

ice a s a saf

ety prec aution. See, e.g ., Opp. at 8 (c ondemningDr. Presa nt’s opinion that “Mr. Gar d exhibi ted ‘pa ranoid ideation’” and pose d “‘a threat of violence ’” a s “pre posterous”) . As he make s clea r ag ain and a g ain throug hout his filings, Mr. Ga rd does not believe that his supervisors ever rea lly came to that conclusion at all; instead, he be lieves that they mere ly rec ited that conclusion as a “pre text ” for

placing him on leave, whic h itself was meant to punish him for his whistle-blowing a ctivity . I d. at 15 (“ Mr. Gar d contends that the
scurr ilous file was a me re pr etext to j ustify a per sonnel ac tion” that constituted a “discriminatory” ac t ag ainst a whistle-blowe r); see id. at 8 (“D efe ndant’s employees w ere well
awa re of the thin and dubious basis of these a lleg ations [contained in Mr. Gar d’s re cords]” beca use those alleg ations had bee n made f or the purpose of “a ssembl[ ing] as much dirt on Mr. Gar d as possible” to ser

ve as “ post-facto justification” of his place ment on leave ). Whil e this argument might ser ve as the basis for a

whistle-blower

claim bef

ore the MSP B — a s, in fact, it did serve — it render s Mr. Gar d’s claims under the Privacy

Act utterly 19nonsensical. I f the de fenda nt placed Mr . Gar d on leave not beca use it believed him to be mentally unstable and da

ng erous, but rather be cause it wanted to punish him for blowing the whistle, then alleg edly

false a nd inacc urate emails and memora nda complainingof Mr. Ga rd’s
err atic conduc t were not the proxi mate ca use of the a g ency ’s dec ision; t he ag ency ’s alleg ed desire to r etaliate w as. And if that is the theor y , his claims under Counts V and I X of his complaint are not Privacy Act cla ims at all. As the for eg oing a

naly sis demonstrates, Mr. Ga rd has f ailed to demonstrate the exis tence of any

g enuinely

disputed issues of fac t that are rele vant to his claims under Sec tion 552a(g )(1) (C). The Court ther efor e will enter summary judgme nt for the de fenda nt as to Counts V and IX of the c omplaint.
B. Claims Under 5 U.S.C. § 552a( g) ( 1) ( D) I f a c laim under the Privac y Act does not a lleg e either (1) a ref usal by the defe ndant ag ency

to “amend a

n individual’s rec ord in ac corda nce w ith his request,” 5 U.S.C. § 552a(g )(1) (A); ( 2) an a g ency ’s re fusal to disclose an individual’s r ecor d to that individual upon reque st pursuant to 5 U.S.C. § 552a(d); see 5 U.S.C. § 552a(g )(1) (B ); or (3) an adve rse a g ency deter mination that was based upon a n inacc urate rec ord in violation of 5 U.S.C. § 552a(g )(1) (C), that claim must be broug ht pursuant to 5 U.S.C. § 552a(g )(1) (D). T hat sec tion of the Act provides that a pla intiff may obtain a civil re medy

ag ainst an ag ency

that has “f

ail[ed] to comply with any other provision” of

Section 552a if that nonc ompliance ha s had “a n adver se ef

fec t” on the plaintiff. 5 U.S.C. § 552a(g )(1) (D). Mr . Gar d contends that he has bee n adver sely aff ecte d by the def endant’ s noncompliance with five “othe r provisions” of the Privacy Act. The Court addre sses ea ch in turn.
201. 5 U.S.C. § 552a(e) (1) Section 552a(e )(1) require s eac h ag ency to “maintain in its recor ds only such information about an individual as is re levant and ne cessa ry to acc omplish a purpose of the ag ency require d to be ac complished by statute or by

executive orde r of the Pre sident.” 5 U.S.C. § 552a(e )(1) . Mr. Gar d cannot pr evail on a c laim based on this provision of the statute bec ause he has ide ntified no information about him maintained in DOE’ s rec ords that is not “rele vant and
nece ssary ” to an a g ency

purpose. His sole attempt to subst antiate his cla ims under this provision is the assertion that DOE has “intentionally maintained the sc urrilous file upon Mr. Ga rd, eve n afte r his return to the w orkplac e.” Surr eply at 8. The Court is unsure to whic h file Mr. Ga rd ref ers, but assumes that he means a personne l file that contains re fer ence s to his confrontations with coworke rs and their

opinions about those confrontations. The claim that such documentation is not releva nt or nec essar

y lacks mer it. Documents conc erningserious intraemploy ee c onflicts and per sonnel behavior problems ar e both re levant and ne cessa ry to the task of mana g ing a

ny org anization with employ ees. The eff ectivene ss with which its employ ees a re manag ed par

tly deter mines whether

DOE is able to se rve the purposes for which the a g ency

was
cre ated. The documents at issue in this case there fore are rele vant and ne cessa ry to the ag ency ’s completion of its administrative mission, and those documents wer e not and a re not maintaine d in violation of 5 U.S.C. § 552a(e)( 1). 2. 5 U.S.C. § 552a(e) (2) Under 5 U.S.C. § 552a(e) (2), a n ag ency must “collect infor

mation to the gr eate st extent practica

ble direc tly

from the subjec t individual when the information may result in adver se deter minations about an individual’s rig hts, benefits, and pr ivilege s under F eder al prog rams.”
215 U.S.C. § 552a(e) (2). Mr. G ard a sserts that the def endant violated this provision by failingto interview him re g ardinghis confrontations with coworker s befor e plac ing him on administrative leave . See Opp. at 9, 18, 24-25. As has a lrea dy been disc ussed, howeve r, see supra at 18-19, Mr. Gar d has not produce d any evidenc e to sug g est how an inter view with him would have a ltered the substance of his rec ords in any way that would have a

verte d the ag ency ’s dec ision to pl ace him on administ rative le ave. I n other wor ds, he ca

nnot show that the ag ency ’s fa ilure to interview him had a

n “adve rse e ffe ct” on him as re quired by 5 U.S.C. § 552a(g )(1) (D), a nd his claims under Sec tion 552a(e) (2) ther efor e ca nnot survive the def

endant’ s motion for summary judgme nt. 3. 5. U.S.C. § 552a(e) (7)

Section 552a(e )(7) prohibits ag encie s, except in lim ited circ umstances, f rom maintaining a

ny “re cord de scribinghow any individual ex erc ises rig hts gua rante ed by

the Fir st Amendment.” 5 U .S.C. § 552a(e)( 7). Mr. Ga rd has not identified a

ny rec ords fitting tha

t descr iption that are maintaine d by the def endant. The defe ndant is entitled to summary judgme nt on this claim as a re sult. 4. 5 U.S.C. § 552a(e) (10)

Under the terms of the Privacy

Act, an a g ency

must “establish appropr iate administrative, technic al, and phy sical saf eguards to insure the secur ity and conf identiality

of
rec ords and to prote ct ag ainst any anticipated thr eats or ha zards to their secur ity or integ rity which could r esult in substantial harm, embar rassment, inconve nience , or unfa irness to any individual on whom information is maintained.” 5 U.S.C. § 552a(e )(10) . Mr. Gar d claims that “the wa nted poster” produce d by the def endant de monstrates that the de fenda nt violated this 22provision. Surreply at 9. That c laim makes no sense . The notice aler ting buildingsecur ity

to Mr. Gar d’s place ment on enfor ced a dminist rative le ave w as not circ ulated as a result of a

ny brea ch of se curity

or data integ rity . Indeed, the case rec ord conta ins no evidence that DOE’s
rec ord sy stem lacke d adequa te safe g uards or

that anyinformation from Mr. G ard’ s file was rele ased be cause of a br eac h in that sy stem’s integ rity . Consequently , the def endant will be
awa rded summar

y judgme nt on this claim.

5. 5 U.S.C. § 552a(b) Ex cept in ce rtain spec ified circ umstances, a g encie s are prohibited under 5 U .S.C. § 552a(b) from “disc los[ ing] any rec ord which is conta ined in a sy stem of re cords by any means of communication to any

person, or

to another a g ency , except pursuant to a written reque st by , or with the prior wr itten consent of, the individual to whom the re cord pe rtains.” 5 U.S.C. § 552a(b) . Acc ordingto Mr. Gar d, the def endant violated this provision when D r. Presa nt was provided with docume nts conce rningMr. Gar d so that he could e valuate w hether Mr. Gar d posed a risk to other e mploy ees. Surr eply at 8-9. Mr. G ard is incor rec t. An ag ency

that maintains a re cord c oncer ning a n individual may

disclose that
rec ord without the individual’s consent so longas the disclosure is to an office r or e mploy ee of the ag ency

who “ha [s] a nee d for the r ecor d in the perf ormanc e of [his or her] duties.” 5 U.S.C. § 552a(b) (1). Ac cordingto undisputed evidence in the rec ord, Dr. Pre sant is an “oc cupational medicine c onsultant” under c ontrac t with DOE. MSJ , Ex . 7, Attach. 4; DSMF ¶ 79. He wa s asked to e valuate the possibili ty that Mr. Gar d’s mental hea lth might be impaire d to such an extent that he might pose a dang er to c olleagues. See D SMF ¶ 79. Dr . Presant “ha [d] a nee d” for at least some doc umentation conce rningMr. Gar d’s behavior in order to perfor m that evaluation.
23Fur

thermore , as a D OE contra ctor, he qualifies as a n “employee” for the pur

poses of Sec tion 552a(b) (1). See Mount v. U.S. P ostal Serv., 79 F.3d 531, 533- 34 (6th Cir. 1996) (disclosure of information from plaintiff’ s rec ords to phy sician under contra ct with defe ndant ag ency was
acc eptable unde r Privacy

Act, 5 U.S.C. § 552a(b) (1), whe re phy sician nee ded the infor mation to evaluate plaintiff’s he alth as it relate d to his fitness as an employ ee) . The disclosure to Dr. Presant ther efor e did not violate the Privac y Act.
I V. CONCLUSI ON For the fore g oing r easons, the Court c oncludes that Mr. G ard ha s failed to identify evidenc e in the re cord that would permit a re asonable fac tfinder to conc lude that the plaintiff ha d proven his cla ims under the Privac y Act. As a

result, summary

judgme nt on all counts of the plaintiff’s complaint will be ente red f or the de fenda

nt. An Orde r consistent with this Opinion shall issue this same day
.

SO ORDERED.
/s/_______________________________ PAULL . FRI EDMAN United States District J udg e DATE: June 9, 2011

24