Wonders v. McHugh et al (MAG+)

Filing 28

ORDER directing as follows: (1) ADOPTING 26 REPORT AND RECOMMENDATION of the Mag Judge; (2) defendants' 16 Motion to Dismiss is GRANTED in part and DENIED in part, as set out in the Magistrate's 26 Report and Recommendation; only plaintiff's Title VII claim remains, and only against Defendant McHugh; defendants Lisa Eichhorn and Heather Pepin are terminated; (3) this case is REFERRED back to the Mag Judge for further proceedings on plaintiff's claims. Signed by Chief Judge William Keith Watkins on 4/22/13. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARK GERAGHTY WONDERS,

)
)
Plaintiff,
)
)
v.
)
)
JOHN McHUGH, LISA EICHHORN, )
and HEATHER A. PEPIN,
)
)
Defendants.
)

CASE NO. 1:12-CV-817-WKW

ORDER
On April 4, 2013, the Magistrate Judge filed a Report and Recommendation
(Doc. # 26) regarding Defendants’ Motion to Dismiss (Doc. # 16). Defendants filed
a timely partial objection. (Doc. # 27.) The court reviews de novo the portion of the
Recommendation to which the objection applies. 28 U.S.C. § 636(b)(1). For the
reasons that follow, the Recommendation is due to be adopted.
Plaintiff, a civilian employee of the United States Army who worked at Fort
Rucker’s Public Affairs Office, filed his pro se complaint on April 24, 2012. Therein,
Plaintiff alleges that Defendants, Secretary of the Army John McHugh and two other
Army employees, violated his constitutional rights by impermissibly releasing
personal health information and by making “fraudulent and defamatory statements.”

(Doc. #1, ¶ 5.) Plaintiff also seeks “a summary judgment in [his] favor of all original
EEO charges.” (Doc. # 1, ¶ 6.)
Plaintiff attached to his complaint filed in this court a complaint filed in August
2009 with the Equal Employment Opportunity Commission (“EEOC”) in which he
alleged that the Army retaliated against him for protected activity. Specifically,
Plaintiff stated that his supervisors took various adverse actions against him after he
filed an earlier EEO complaint claiming that his employers discriminated against him
on the basis of sex when they promoted his female counterpart over him. (Doc. # 1,
Ex. 1 at 2–3.) In May 2011, an administrative law judge “concluded that [Plaintiff]
failed to prove that the legitimate reasons proffered by the [Army] for its actions were
pretext masking unlawful retaliatory animus” and granted summary judgment in favor
of the Army. (Doc. 1, Ex. 1 at 4.) After the EEO Office of Federal Operations
(“OFO”) affirmed that decision, Plaintiff filed this action.
Based on Plaintiff’s EEO complaints, his statement in this complaint that he
seeks “summary judgment” on “all original EEO charges,” (Doc. # 1, ¶ 6), and the
attached EEO OFO opinion, the Magistrate Judge concluded that Plaintiff pleaded a
cause of action for violations of Title VII, 42 U.S.C. §§ 2000e-1–17.1 In so doing, the
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The Magistrate Judge also concluded, and Defendants appear to agree, that Plaintiff
attempted to state causes of action for defamation and violations of the Privacy Act, 5 U.S.C. §§
552a(b),(g), and the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C.
§ 1320d-6. The Magistrate Judge recommends that those claims be dismissed, and Defendants
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Magistrate Judge properly construed Plaintiff’s pro se pleadings liberally. Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (“[A] pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers[.]”
(internal quotations omitted)).
Defendants object to the Magistrate Judge’s Recommendation to the extent it
concludes Plaintiff’s complaint includes a Title VII claim and recommends that the
Title VII claim against Secretary McHugh survive. After a de novo review, the court
accepts the Recommendation of the Magistrate Judge. Plaintiff’s prayer for relief
included a request for summary judgment in his favor on “all original EEO charges”
and included an EEO OFO opinion affirming summary judgment granted in favor of
Defendants. (Doc. # 1, ¶ 6 (emphasis added).) Construing Plaintiff’s pleading as an
appeal to this court to overturn the EEO OFO determination – the proper course for
such a challenge – does not amount to the court serving as “de facto counsel” for
Plaintiff or “rewrit[ing] an otherwise deficient pleading.” See GJR Invs., Inc. v. Cnty.
of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (limiting liberal construction for
pro se pleadings) (overruled on other grounds by Randall v. Scott, 610 F.3d 701 (11th
Cir. 2010)). Instead, it is a reasonable construction of Plaintiff’s pro se complaint in

do not object to that determination.
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light of the attached EEO OFO opinion, which places Defendants on sufficient notice
of Plaintiff’s claim against them.
Accordingly, it is ORDERED as follows:
1.

The Recommendation of the Magistrate Judge (Doc. # 26) is ADOPTED.

2.

Defendants’ Motion to Dismiss is GRANTED in part and DENIED in

part, as set out in the Magistrate’s Recommendation (Doc. # 16). Only Plaintiff’s
Title VII claim remains, and only against Defendant McHugh. Defendants Lisa
Eichhorn and Heather Pepin are terminated.
3.

This case is REFERRED back to the Magistrate Judge for further

proceedings on Plaintiff’s claims.
DONE this 22nd day of April, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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