Hoover, Stephen v. Szymanski, Theodore

Filing 42

OPINION & ORDER granting 26 Motion for Summary Judgment. Signed by District Judge James D. Peterson on 4/17/17. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

STEPHEN P. HOOVER,
Plaintiff,
v.

OPINION & ORDER

THEODORE P. SZYMANSKI and
UNITED STATES OF AMERICA,

16-cv-424-jdp

Defendants.
Plaintiff Stephen P. Hoover, a former employee of the U.S. Army, is proceeding on
claims that defendant Theodore P. Szymanski, another U.S. Army employee, recorded
Hoover’s threatening statements about Szymanski in violation of the Federal Wiretap Act, 18
U.S.C. § 2511, and its Wisconsin counterpart, Wis. Stat. § 968.31. Because the Attorney
General’s designee certified that Szymanski was acting within the scope of his employment at
the time of the alleged recording, Hoover’s state-law claim arises under the Federal Tort
Claims Act (FTCA), and the United States has been substituted as the defendant on this
claim. See Dkt. 25.
Defendants move for summary judgment on both of Hoover’s claims. Dkt. 26. They
contend that Hoover’s Federal Wiretap Act claim is barred by the applicable statute of
limitations and that Hoover’s state-law claim must be dismissed because he failed to exhaust
his administrative remedies. Because Hoover did not file his complaint in this court or an
administrative claim with the U.S. Army within two years of reviewing the sole document
forming the basis of his claims, the court will grant summary judgment to defendants and
close this case.

UNDISPUTED FACTS
Except where noted, the following facts are undisputed.
In 2013, Hoover and Szymanski were both civilian employees of the U.S. Army. They
worked at Fort McCoy, in Wisconsin. On December 19, 2013, Hoover received a notice from
a manager at Fort McCoy proposing that Hoover be removed from his position because of his
misconduct. The notice cited, among other acts of misconduct, a statement Hoover allegedly
made to a co-worker, Nathan Lechtenberg, about Szymanski:
On 12 December 2013, you were overheard speaking with Mr.
Lechtenberg about one of your co-workers, Mr. Ted Szymanski.
During this conversation you stated that “I know we have to
work together but one of us could die, did you hear me, one of
us could die.”
Dkt. 32-1, at 1.
The notice initiated an administrative removal process, in which Hoover was
represented by a union representative, David Clark. On December 20, Clark obtained the
documents supporting Hoover’s proposed removal, including Szymanski’s December 16
statement about the December 12 incident cited in the notice:
On Thursday, 12 Dec 13 at approximately 1445 hours I was
[by] cabinet H . . . . [J]ust inside of Bldg. #2122 door #S2122 I
overheard Steve Hoover talking with Nate Lechtenberg about
me with Steve Hoover stating among other things about me to
Nate Lechtenberg “I know we have to work together but one of
us could die” “did you hear me, one of us could die”.
After recording this and deciding to talk to my supervisor, I
talked to him briefly informing him of the need to discuss an
issue and I felt this could wait until next week.
Dkt. 30-1, at 13.
Hoover and Clark met and reviewed these documents, including Szymanski’s
statement. On January 7, 2014, Hoover gave Clark his written reply to the proposed removal

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notice, titled “Statement in rebuttal to Ted’s statement.” Dkt. 32-3. In the reply, Hoover
argued that Szymanski could not have overheard Hoover’s conversation with Lechtenberg
from the location described in Szymanski’s statement:
Ted . . . was not even in the room when the conversation was
going on. . . . [S]tand in front of cabinet H and have someone
talk in the office and see if you can make out the context of the
conversation …you cant. Even if you are going out of your way
and trying to hear you can’t make out the full context of the
conversation. . . . Ted [was] obviously eavesdropping, spying and
stalking as usual . . . . Snooping, obviously eavesdropping and
spying . . . .
Dkt. 32-3. Hoover concluded his reply with some general complaints about Szymanski:
Teds attitude that he’s the senior man and I am the fng. And
that he needs to have final say on everything seems to fuel his
paranoia, coupled with the fact that he got Gabe fired.
Supervisions unwillingness to do anything about his chronic
lateness and his excessive use of 14 time and also his ability to
go for 22 years and never having been able to work with
anyone….…well enough said you know how I feel.
Id.
The Army removed Hoover from his position in March 2014. In April 2015, Hoover
read Szymanski’s statement to his friend Jeff McCann, an ex-police officer. McCann told
Hoover that Szymanski’s alleged “recording” of Hoover’s conversation was illegal. Hoover
filed his complaint in this case on June 16, 2016.
The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367
because Hoover’s Federal Wiretap Act claim arises under federal law, and because his state
law claim is part of the same case or controversy.

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ANALYSIS
To succeed on a motion for summary judgment, defendants, as the moving parties,
must show that there is no genuine dispute of material fact and that they are entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “A genuine issue of material fact arises only if sufficient evidence favoring the
nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v.
Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from
the facts in the summary judgment record must be drawn in the nonmoving party’s favor.
Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999).
A. Federal Wiretap Act claim
Defendants contend that Hoover’s claim under the Federal Wiretap Act is barred by
the applicable statute of limitations. A claim under the Federal Wiretap Act must be brought
within “two years after the date upon which the claimant first has a reasonable opportunity
to discover the violation.” § 2520(e); Davis v. Zirkelbach, 149 F.3d 614, 618 (7th Cir. 1998).
The sole evidentiary basis for Hoover’s claim under § 2511 is Szymanski’s December
16 statement, which indicates that Szymanski recorded Hoover’s December 12 conversation
with Lechtenberg. Thus, Hoover had a reasonable opportunity to discover Szymanski’s
purported violation of § 2511 when he first read Szymanski’s December 16 statement.
Hoover read Szymanski’s statement sometime between December 20, 2013, when Clark
received it, and January 7, 2014, when Clark received Hoover’s “Statement in rebuttal to
Ted’s statement.” Thus, Hoover would have had to have brought his claim against Szymanski
no later than January 7, 2016. But he did not file his complaint until June 16, 2016.
Hoover’s claim is time barred.

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Hoover contends that his claim is timely for two reasons. First, he argues that he “did
not actually discover and learn of the alleged violation until April of 2015,” when McCann
told him that Szymanski’s alleged recording of Hoover’s conversation was illegal. Dkt. 34, at
3. This argument fails. Hoover has not shown that he learned anything about the factual
basis for his claim in April 2015—he argues only that he learned only that Hoover’s alleged
recording was illegal. The statute of limitations period runs from the date the claimant has a
reasonable opportunity to discover the factual basis for the claim, not the illegality of the
alleged violation. See Davis, 149 F.3d at 618 (holding that the statute of limitations period
under § 2520(e) accrued when the claimant learned “that something had been taped,” which
was “enough to put him on inquiry notice that his rights might have been invaded”). Hoover
discovered the factual basis for his claim when he read Szymanski’s statement.
Second, Hoover argues that he “did not discover the recording [on January 7, 2014,]
because, according to the Defendant, there was no recording. Obviously, it would have been
impossible for Mr. Hoover to discover an event that Defendant claims did not occur.”
Dkt. 34, at 3. This is a losing argument. The primary purpose of most statutes of limitations
is “to protect defendants against stale or unduly delayed claims.” John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 133 (2008). That purpose would be defeated if a claim never
accrued as long as the defendant claimed that he did not commit the alleged act underlying
the claim. The fact that defendants claim that Szymanski did not record Hoover’s
conversation does not toll the statute of limitations period. Hoover’s Federal Wiretap Act
claim is time barred.

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B. FTCA claim
Defendants contend that Hoover’s FTCA claim is barred because Hoover failed to
exhaust his administrative remedies before filing suit. Before initiating a suit in federal
district court, the FTCA requires a plaintiff to file an administrative complaint with the
appropriate federal agency within two years of accrual of the claim. 28 U.S.C. § 2401(b). “A
plaintiff’s failure to exhaust administrative remedies before he brings suit mandates dismissal
of the claim.” Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003). Claims against the
United States are routinely administratively presented using Standard Form 95, although
Department of Justice regulations also allow a claim to be presented through “other written
notification of an incident, accompanied by a claim for money damages in a sum certain.” 28
C.F.R. § 14.2(a); see also Khan v. United States, 808 F.3d 1169, 1171 (7th Cir. 2015). The
Seventh Circuit applies this requirement loosely, requiring only that the written notification
specify “facts plus a demand for money.” Khan, 808 F.3d at 1173.
Hoover never submitted his claim to the Army using Standard Form 95, but he argues
that he nonetheless exhausted his administrative remedies when he presented his “Statement
in rebuttal to Ted’s statement” to the Army as part of the administrative removal process.
But even assuming that Hoover’s reply specified the facts forming the basis of his claim, it
still does not satisfy § 14.2(a) because it does not include a demand for money. In Khan, a
claimant’s letter to the U.S. Marshals Service “describing the indignities to which she’d been
subjected during [her] arrest” did not satisfy § 14.2(a), because it did not include a demand
for money but rather “would have created the impression that the ‘claimant’ was seeking
something other than money—such as an apology for the misconduct of the arresting
marshals, or punishment of them, or better training of marshals. It would not have been

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apparent that she was contemplating suit. The Marshals Service might have been deceived
into thinking it needn’t prepare a defense or attempt to negotiate a settlement.” 808 F.3d at
1171, 1173. Likewise, Hoover’s reply did not make it apparent that he was contemplating a
lawsuit. Instead, the Army likely perceived it as an effort to avoid removal. “[F]ailure to ask
for any damages—any money—is fatal.” Id. at 1173. Hoover did not present his FTCA claim
to the Army within two years of its accrual, so it is barred.

ORDER
IT IS ORDERED that:
1. Defendants Theodore P. Szymanski and United States of America’s motion for
summary judgment, Dkt. 26, is GRANTED.
2. The clerk of court is directed to enter judgment in favor of defendants and close
this case.
Entered April 17, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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