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Russo v. United States

September 3, 2008

KEVIN RUSSO, PLAINTIFF,
v.
UNITED STATES OF AMERICA & DEPARTMENT OF THE AIR FORCE, DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This matter is before the Court upon Defendants' motion for partial summary judgment as to Count One of Plaintiff Kevin Russo's Complaint [Docket Item 32]. At the time the events underlying this lawsuit transpired, Plaintiff was a pilot in the Air Force Reserve, and was also employed as a commercial pilot by American Airlines ("AA"). In December 2003, Plaintiff's squadron commander communicated with AA about Plaintiff's active duty military status, and AA subsequently terminated Plaintiff's employment on account of the fact that Plaintiff had apparently concealed from his employer his active duty status. Plaintiff's Complaint alleges, inter alia, that his commander's communication of Plaintiff's active duty military status to AA violated the Privacy Act, 5 U.S.C. § 552a, et seq. Defendants have moved for summary judgment as to Plaintiff's Privacy Act claim. For the reasons set forth herein, the Court will grant Defendants' motion, holding that Defendants' disclosure of Plaintiff's active duty military status to his civilian employer does not violate the Privacy Act.

II. BACKGROUND

A. Facts

Plaintiff Kevin Russo became a member of the United States Air Force Reserve in 1985, and was hired as a pilot by AA in 1986. (Russo Dep. 27-28.) By August 2003, Plaintiff's responsibilities for AA consisted of flying "reserve bid assignments," which meant in effect that he was "on call," subject to being contacted on short notice for flight assignments. (Defs.' Statement of Undisputed Material Facts ("SUMF") ¶ 7.)

Sometime between May 29, 2003 and August 25, 2003, Plaintiff received an order from the Air Force Reserve informing him that he had been assigned to a 270-day tour of active military duty, with a reporting date of August 25, 2003 and a release date of May 20, 2004. (Defs.' SUMF ¶ 15; Pl.'s SUMF ¶ 1.) Part of Plaintiff's tour of duty required him to report to Altus Air Force Base ("Altus AFB") in Oklahoma in order to attend training sessions on piloting the Air Force's C-17 aircraft. (Defs.' SUMF ¶ 16; Pl.'s SUMF ¶ 1.) Plaintiff, thinking that he "could actually work [his] military and [his AA] airline schedule together" and that his active duty military status did not pose a "conflict with American Airlines scheduling," did not inform AA of his active military duty status. (Defs.' SUMF ¶¶ 18-19; Pl.'s SUMF ¶ 1.)

In December 2003, Plaintiff's squadron commander at the McGuire Air Force Base ("McGuire AFB") in New Jersey was Lt. Col. Edward J. Callaghan, Jr. (Defs.' SUMF ¶ 28; Pl.'s SUMF ¶ 10.) On December 11, 2003, Callaghan was in his office at McGuire AFB when he received an anonymous telephone call in which an unidentified caller asked Callaghan whether Callaghan was aware of the fact that Plaintiff had been flying for AA while he was at Altus AFB. (Pl.'s SUMF ¶ 11.) Callaghan answered the unidentified caller's questions, and when he subsequently asked for the caller's name, the caller hung up. (Id. at ¶ 12.) Although the parties appear to dispute the sequence of the steps Callaghan took following the anonymous telephone call -- and indeed whether an anonymous caller did in fact place a call to Callaghan*fn1 -- it is clear that Callaghan placed two telephone calls on December 11, 2003 after he allegedly spoke to the anonymous caller: one to AA, and one to Plaintiff.*fn2 (Id. at ¶ 25; Defs.' SUMF ¶¶ 28, 35.)

Callaghan placed a call to AA's Flight Office at LaGuardia Airport on December 11, 2003, and spoke with Chief Pilot Rod Mauro. (Defs.' SUMF ¶ 35; Pl.'s SUMF ¶ 1.) Callaghan asked Mauro whether Plaintiff was an active employee of AA and whether Plaintiff had flown any trips for AA during the previous few months; Mauro answered both questions affirmatively. (Defs.' SUMF ¶¶ 36-37; Pl.'s SUMF ¶ 1.) Callaghan then asked Mauro whether AA permitted its pilots to fly trips for AA when they were on military leave; Mauro informed Callaghan that AA did not permit its pilots to do so. (Defs.' SUMF ¶ 38; Pl.'s SUMF ¶ 1.) Callaghan then stated to Mauro that the "anonymous complaint alleging that Russo was still flying as an American A-300 Captain while being on active military duty orders" was under investigation by the Judge Advocate General. (Defs.' SUMF ¶ 40; Pl.'s SUMF ¶ 1.) Mauro requested that Callaghan fax him a copy of Plaintiff's military active duty orders; Callaghan obtained a copy of Plaintiff's active duty order, redacted Plaintiff's Social Security Number (but not his security clearance or his home address), and faxed the copy to Mauro. (Defs.' SUMF ¶ 39; Pl.'s SUMF ¶ 1.)

On December 11, 2003, Callaghan also called Plaintiff and asked whether he had flown for AA while on active military leave, to which Plaintiff responded affirmatively. (Defs.' SUMF ¶¶ 29-30; Pl.'s SUMF ¶ 1.) According to Plaintiff, Callaghan then informed Plaintiff that "we may have a problem" and "abrupt[ly]" hung up. (Defs.' SUMF ¶ 32; Pl.'s SUMF ¶ 1.) After receiving Callaghan's telephone call, Plaintiff apparently believed that there might be a scheduling conflict between his military duties and his AA schedule, and later that day he called AA's Flight Office at LaGuardia Airport to request to be placed on military leave of absence for the remainder of December 2003. (Defs.' SUMF ¶¶ 33-34; Pl.'s SUMF ¶ 1.) Plaintiff spoke with Captain Bob Shore, AA's Director of Flights for New York, who told Plaintiff that he would need to verify the dates of Plaintiff's leave of absence. (Defs.' SUMF ¶¶ 42-45; Pl.'s SUMF ¶ 2.) Shore informed Plaintiff that AA had already received "from [Plaintiff's] squadron" a copy of Plaintiff's active duty orders for the period beginning August 25, 2003, but requested that Plaintiff send "any additional orders" that he had. (Russo Dep. 149.) Plaintiff subsequently faxed Shore a copy of his flight orders for the month of December 2003, (id. at 150), and was placed on military leave of absence on December 12, 2003. (Defs.' SUMF ¶ 48; Pl.'s SUMF ¶ 2.)

Following the series of telephone calls on December 11, 2003, two significant occurrences took place. First, on March 24, 2004, AA terminated Plaintiff's employment. (Defs.' SUMF ¶ 55; Pl.'s SUMF ¶ 1.) AA's letter of termination to Plaintiff stated that

[d]uring much of the time between the end of August and the beginning of November [of 2003] that you were showing available as a reserve pilot with American Airlines, you were attending training at Altus AFB in Oklahoma and would not have been able to fly a trip if assigned.

During the period of time in question, at a minimum you misrepresented your ability to provide American Airlines with reserve availability[, which] . . . . allowed you to collect salary to which you were not entitled, as well as vacation and sick leave accruals to which you were similarly not entitled . . .

(Id.) Plaintiff grieved his termination through arbitration, and AA's decision to terminate Plaintiff was upheld. (Defs.' SUMF ¶ 57; Pl.'s SUMF ¶ 2.)

Second, in 2005, the Air Force Reserve Command Inspector General's Office ("IGO") launched an investigation into a series of complaints that Plaintiff had lodged against Callaghan and other senior officers, which resulted in the production of an initial investigatory report on August 24, 2005 (the "2005 Preliminary Report of Investigation" or "2005 Report").*fn3 (Defs.' Reply Br. Ex. W.) The IGO's preliminary investigation ultimately led to the issuance of a report by the Air Force Inspector General's Office in April 2007 (the "2007 Report of Investigation" or "2007 Report"). (Pl.'s Opp'n Br. Ex. A.) The 2007 Report addressed alleged abuses of authority that occurred between January 30, 2004 and May 6, 2006. (Id. at 6-9.) The 2007 Report found that three of Plaintiff's six allegations against Callaghan were substantiated, while three were not. (Id. at 81.) The 2007 Report did not address the issue of whether Callaghan's December 11, 2003 communications with AA violated the Privacy Act.*fn4

B. Procedural History

Plaintiff filed his Complaint in this action on December 8, 2005. The Defendants are the United States, the Department of the Air Force, and Callaghan. Plaintiff alleged that Callaghan's December 11, 2003 communications with AA violated the Privacy Act (Count One); that Callaghan improperly collected information from AA about Plaintiff (Count Two) and improperly maintained Plaintiff's disciplinary records (Count Three) in violation of the Privacy Act; that the United States ...


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