Almy et al v. United States Department of Defense et al

Filing 43

MOTION for Partial Summary Judgment filed by Michael D. Almy, Jason D. Knight, Anthony J. Loverde. Motion Hearing set for 9/1/2011 01:30 PM in Courtroom 3, 17th Floor, San Francisco before Hon. Richard Seeborg. Responses due by 8/10/2011. Replies due by 8/17/2011. (Attachments: # 1 Declaration by Almy, # 2 Exhibit 1 to Almy Dec, # 3 Exhibit 2 to Almy Dec, # 4 Exhibit 3 to Almy Dec, # 5 Exhibit 4 to Almy Dec, # 6 Exhibit 5 to Almy Dec, # 7 Exhibit 6 to Almy Dec, # 8 Exhibit 7 to Almy Dec, # 9 Exhibit 8 to Almy Dec, # 10 Exhibit 9 to Almy Dec, # 11 Exhibit 10 to Almy Dec, # 12 Declaration by Knight, # 13 Exhibit 1 to Knight Dec, # 14 Exhibit 2 to Knight Dec, # 15 Exhibit 3 to Knight Dec, # 16 Exhibit 4 to Knight Dec, # 17 Exhibit 5 to Knight Dec, # 18 Exhibit 6 to Knight Dec, # 19 Exhibit 7 to Knight Dec, # 20 Declaration by Loverde, # 21 Exhibit 1 to Loverde Dec, # 22 Exhibit 2 to Loverde Dec, # 23 Exhibit 3 to Loverde Dec, # 24 Exhibit 4 to Loverde Dec, # 25 Exhibit 5 to Loverde Dec, # 26 Exhibit 6 to Loverde Dec, # 27 Exhibit 7 to Loverde Dec, # 28 Certificate/Proof of Service)(Woodmansee, Mark) (Filed on 7/27/2011) Modified on 8/4/2011 (gba, COURT STAFF).

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M. ANDREW WOODMANSEE (CA SBN 201780)
[e-mail]
STEPHANIE L. FONG (CA SBN 240836)
[e-mail]
KIMBERLY R. GOSLING (CA SBN 247803)
[e-mail]
JESSICA A. ROBERTS (CA SBN 265570)
[e-mail]
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, California 92130-2040
Telephone: [phone]
Facsimile: 858.720.5125
JOHN M. GOODMAN (DC SBN 383147)
[e-mail]
SERVICEMEMBERS LEGAL DEFENSE NETWORK
P.O. Box 65301
Washington, DC 20035-5301
Telephone: [phone]
Facsimile: 202.797.1635
Attorneys for Plaintiffs
MICHAEL D. ALMY, JASON D. KNIGHT,
AND ANTHONY J. LOVERDE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL D. ALMY, JASON D. KNIGHT,
and ANTHONY J. LOVERDE,
Plaintiffs,

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v.
UNITED STATES DEPARTMENT OF
DEFENSE; ROBERT M. GATES, Secretary
of Defense; DEPARTMENT OF THE AIR
FORCE; MICHAEL B. DONLEY, Secretary,
Department of the Air Force; DEPARTMENT
OF THE NAVY; and RAY MABUS,
Secretary, Department of the Navy,
Defendants.

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DECLARATION OF ANTHONY J. LOVERDE
sd-544699

Case No. 10-cv-05627-RS
DECLARATION OF ANTHONY J.
LOVERDE IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT
Date: September 1, 2011
Time: 1:30 p.m.
Courtroom: 3, 17th Floor
Judge: Hon. Richard Seeborg

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I, Anthony J. Loverde, hereby declare as follows:

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1.

Since childhood, I had an interest in serving in the U.S. military. One of my

grandfathers served in the Coast Guard in World War II, another grandfather served in the Army
during the Korean conflict and received a Purple Heart, and one of my uncles served in
the Marine Corps in Vietnam. I was the first member of my family in this generation to serve in
the armed forces. I was followed by my brother and three of my cousins. My brother served in
the Army as an Infantryman and currently serves in the Air Force Reserves as a Security
Forces Non-Commissioned Officer.
2.

I enlisted in the Air Force in February 2001. I served from 2001 to 2004 in the

86th Maintenance Squadron. During this time, I was stationed in Germany and calibrated
weapons systems for the squadron as a Precision Measurement Equipment Laboratory
Technician. In 2005, I was reassigned to Edwards Air Force Base, California.
3.

Although I had the option of leaving the Air Force in 2007, after quite a bit of

encouragement from those I served under, I decided to reenlist in 2006 before my original
enlistment ended. At that time, I opted to retrain as a C-130 Loadmaster. In this new role, I
joined the 37th Airlift Squadron at Ramstein Air Force Base in Germany. In 2007, I deployed
with my squadron as part of the troop “surge” in support of Operation Iraqi Freedom.
4.

During my service in the Air Force, I received numerous military awards and

decorations. These accolades include, but are not limited to, the Air Medal, the Air Force
Commendation Medal, the Air Force Outstanding Unit Award, the Air Force Good Conduct
Medal, the National Defense Service Medal, the Global War on Terrorism Service Medal, the Air
Force Overseas Ribbon, the Air Force Expeditionary Service Ribbon, the Air Force Longevity
Service Ribbon, the Air Force NCO PME Graduate Ribbon, the Small Arms Expert
Marksmanship Ribbon, and the Air Force Training Ribbon.
5.

During my service in the Air Force, my military superiors and evaluators provided

uniformly high assessments of me in my annual performance evaluations and promotion
recommendations. For example, one former supervisor made the following comment:

DECLARATION OF ANTHONY J. LOVERDE
sd-544699

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Unmatched support on channel [mission] . . . key to mission
success . . . superior knowledge/abilities guaranteed readiness . . .
pressing ahead of peers academically . . . agile in body & mind[.]
Earned Distinguished Graduate award from Basic Loadmaster
course . . . Hard charger . . . Airdropped 87 Army & Italian special
forces; critical to joint training exercise—fostered combat
effectiveness . . . Sincere humanitarian; visited injured soldiers at
LRMC w/Red Cross pet program—lifted hopes/sped recovery[.]
Excels in all facets of his duties, consistently improving knowledge
level and loadmaster skills—promote now.

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A copy of this performance review is attached hereto as Exhibit 1.

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6.

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However, during my deployment to Ali Al Salem Air Force Base in 2007, it

became clear to me that I could no longer continue pretending to be someone I was not. Other
service members talked about loved ones back home and leaned on each other for support, but
because I am gay, I found myself avoiding interaction with my fellow troops so as not to deceive
them.
7.

Upon my return from deployment in April 2008, I emailed two of my superior

officers to let them know that I am gay. I was mindful of what the Air Force has described as
“Air Force Core Values,” which are “Integrity first, Service before self, and Excellence in all we
do.” I told my superior officers that although I would like to continue to serve, I could not do so
if it also meant continuing to conceal my sexual orientation. A true and correct copy of the email
I sent to MSgt Welch is attached as Exhibit 2.
8.

On or about April 24, 2008, MSgt Welch telephoned me to request a meeting with

him and Lt. Col. Brian Yates, my commander, to discuss my email sent April 22, 2008. The
following day, my commander asked me to acknowledge the printed email dated April 22, 2008
and to confirm that I sent the email and was not coerced to do so. The commander informed me
that I was the first Don’t Ask, Don’t Tell case that he had to deal with, and that he did not know
what to do about it. The commander said he would contact the Air Force legal department for
further instruction and his official recommendation would be made according to the legal
department’s recommendation.
9.

The following day, April 25, 2008, my commander informed me that the legal

department recommended discharge. He again let me know that he did not know what to expect
DECLARATION OF ANTHONY J. LOVERDE
sd-544699

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in regards to the process, but that I should check in periodically with the First Sergeant to find out

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any information that may come available. My commander and First Sergeant then ordered me to

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resume my two weeks of reintegration leave that was granted to all returning aircrew members

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from deployment and to report back to work at the end of my leave.

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department regarding the April 22, 2008 email and stated:

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It is not my opinion that SSgt Loverde made this statement for the
sole purpose of avoiding military service. He recently returned
from a four-month deployment, so the timing of this statement is
not suspect. In addition, SSgt Loverde showed interest in finishing
out his enlistment. SSgt Loverde’s military record and performance
has been nothing less than honorable.

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On May 13, 2008, my commander filed an official memorandum with the legal

A copy of this memorandum is attached hereto as Exhibit 3.
11.

On or about June 9, 2008, I received a memorandum informing me that I was

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being recommended for discharge under DADT. A true and correct copy of this memorandum is

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attached hereto as Exhibit 4. The memo stated:

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I am recommending that you receive an honorable discharge
characterization. The commander exercising Special Court-Martial
Convening Authority jurisdiction, or a higher authority, will decide
whether you will be discharged or retained in the United States Air
Force.

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I was concerned that it was nearly impossible to win retention with a board

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hearing, and it would only delay the process and discharge would ultimately result in the end.

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Moreover, I feared that, although my commander had recommended an honorable discharge, the

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higher authority might change the categorization due to some sort of prejudice.

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I am aware of personal prejudice towards homosexuality, and I did not want to risk

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my honorable characterization for anything less than what my service record reflected. I asked to

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be retained, but if that was not possible, my service record reflected an honorable characterization

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and there was no protection from prejudice in the administrative process. The waiver was the

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only assurance to protect myself from further discrimination under the law.

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DECLARATION OF ANTHONY J. LOVERDE
sd-544699

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In support of my request for retention, I cited the Witt v. Department of the Air

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Force decision, which had been made on May 21, 2008. I also provided numerous character

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references to support the fact that my discharge would not meet the “heightened standard”

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required by Witt. A true and correct copy of an email in which I made clear to my commanders

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that I did not want to be discharged, and that I thought the Witt standard should apply, is attached

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hereto as Exhibit 5.

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15.

During the discharge process, many other co-workers and superiors wrote in

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support of my retention. Consistent with my high performance reviews throughout my career,

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these supporters noted that I “always produced high quality work” and could be counted on “to

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get the job done right.” Based on his personal experience working with me, one former superior

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officer wrote: “I fully recommend that you consider retaining him in the Air Force. He has the

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potential to go very far in whatever endeavor he pursues . . . I hope that includes continued

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service to our nation.” Another former superior officer wrote: “If I ever had the opportunity to

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build my ‘dream team’ for work, I would take an entire crew of SSgt Loverdes over most other

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workers I have encountered.”

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Nonetheless, on or about June 19, 2008, I received a “Discharge Legal Review”

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memorandum again recommending discharge. A true and correct copy of the “Discharge Legal

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Review” memorandum is attached hereto as Exhibit 6. The memorandum recommended an

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honorable discharge. It cited the basis for this action as the email I sent to my superiors in April.

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The memorandum recognized that I wanted the Witt standard to be applied to my case, but

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dismissed this standard as inapplicable.

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17.

In face of the discharge recommendation, on June 24, 2008, the Air Force Career

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Enhancement office notified me that I was eligible and scheduled for promotion testing on June

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25, 2008. I tested for promotion although I was in the process of being kicked out of the Air

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Force.

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18.

Ironically, in August 2008, I was awarded the Air Medal for my “superior ability

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in the presence of perilous conditions” during my deployment in support of Operation Iraqi

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Freedom—the deployment that ultimately brought me to the decision to come out as gay to the
DECLARATION OF ANTHONY J. LOVERDE
sd-544699

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