29 May 1998
Source: David Sweigert
See related documents: http://jya.com/dgsfiles.htm
[Docket No. 13, March 23, 1998]
UNITED STATES DISTRICT COURT
District of Maryland
DAVID G. SWEIGERT (PRO SE) )
)
Plaintiff )
)
Vs. ) AMD98-654
)
DEPARTMENT OF THE ARMY, and )
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DEPARTMENT OF LABOR )
)
Defendants )
_________________________________)
PLAINTIFF’S SECOND AMENDED COMPLAINT
PRO SE Plaintiff D. G. Sweigert hereby amends his INITIAL compliant
filed March 3, 1998 and his FIRST AMENDED COMPLAINT filed March 16, 1998 with
the following:
BACKGROUND
The Office of Federal Contract Compliance Programs (herein OFCCP) is
a department of the U.S. Department of Labor. The OFCCP maintains a system of
records of investigated complaints and therefore is subject to the Privacy Act,
5 U.S.C. 552a. These records are described as Complaint No. D-97-0012 by the
OFCCP in the agency’s letter of February 20, 1998 [attached as Exhibit 1].
Subsection (e)(5) of the Privacy Act requires an agency to “maintain
all records which are used by the agency in making any determination about any
individual with such accuracy . . . as is reasonably necessary to assure fairness
to the individual in the determination.” Subsection (g)(1)(C) provides a civil
remedy if an agency fails to satisfy the standard in subsection (e)(5) “and
consequently a determination is made which is adverse to the individual”.
Pursuant to subsection (g)(4) of the Privacy Act, a plaintiff bringing an action
under subsection (g)(1)(C) may recover actual damages if “the court determines
that the agency acted in a manner which was intentional or willful.”
Pursuant to Dennis Deters vs. U.S. Parole Commission, U.S.C.A. for the
Dist. Of Columbia Circuit, No. 94-5237 [attached as Exhibit Two], in order for
the Plaintiff to prevail on a claim for money damages pursuant to subsections
(g)(1)(C) and (g)(4) of the Privacy Act, Plaintiff must prove the following:
(1) he has been aggrieved by an adverse determination; (2) the agency failed
to maintain his records with the degree of accuracy necessary to assure fairness
in the determination; (3) the agency’s reliance on the inaccurate records was
the proximate cause of the adverse determination; and (4) the agency acted
intentionally or willfully in failing to maintain accurate records (see Disckson
v. Office of Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987); Rose v.
United States, 905 F.2d 1257, 1259 (9th Cir. 1990).
ALLEGATIONS
Plaintiff has been aggrieved by an adverse determination.
The OFCCP released it’s Notification of Results of Investigation (herein NRI)
via OFCCP letter dated December 3, 1997 [attached as Exhibit 3]. The plaintiff
contested the NRI via the plaintiff’s letter of December 15, 1997 [attached as
Exhibit 4]. The agency acknowledged the plaintiff’s letter contesting the NRI
via the agency letter of February 2, 1998 [attached as Exhibit 5]; however, took
no action to change the results of the agency finding. The plaintiff further
complained to the OFCCP via electronic message of February 25, 1998 [attached
as Exhibit 6], which the agency acknowledged via the OFCCP letter of February 27,
1998 [attached as Exhibit 7]; however, the agency still took no action to amend
or change the adverse determination of the 12/3/1997 NRI.
The agency failed to maintain their records with the degree of accuracy necessary
to assure fairness in the determination.
The OFCCP NRI agency report of 12/3/1998 specifically stated:
“. . .His [Plaintiff’s] employment was terminated effective August 12, 1996 when
the government eliminated funding for his position. . .the termination action
appears to have been the result of straightforward budgetary restraints imposed
by the contracting agency (U.S. Army) on the operation . . .[para (I), page (5),
Exhibit 3]”
Plaintiff presented (12) twelve exhibits in his rebuttal letter of 12/15/1997
[Exhibit 4] that the stated reason for the plaintiff’s termination, “funding
cut-backs”, was not credible. The plaintiff submitted exhibits that demonstrated
the plaintiff was re-assigned to a project known as Electronic Commerce,
Electronic Data Interchange (EC/EDI), chartered by the Office of the Assistant
Secretary of Defense. The exhibits demonstrated that funding was indeed given
to the contractor by the U.S. Army to execute EC/EDI funding (8) eight days after
the plaintiff was terminated. The record of letters exchanged between the OFCCP
and the plaintiff indicates that the OFCCP took no action to further investigate
the dubious “funding cut-backs” claim by the defense contractor (plaintiff’s
former employer) that would have corrected their records.
The agency’s reliance on the inaccurate records was the proximate cause of the
adverse determination.
The OFCCP’s letter of 2/27/1998 [attached as Exhibit 7] indicates that the OFCCP
“upheld upon reconsideration” it’s original determination, which the plaintiff
contends, was based upon a system of inaccurate records; i.e. no further
investigation of the “funding cut-backs” claim.
The agency acted intentionally or willfully in failing to maintain accurate records.
OFCCP letters of 2/2/1998 [Exhibit 5] and 2/27/1998 [Exhibit 7] indicate that the
agency was advised of the plaintiff’s concerns, but took no action to verify the
dubious claim of “funding cut-backs” or otherwise correct their records.
The “funding cut-backs” claim is an important concern, as the plaintiff specifically
complained of retaliatory conduct [para (d), page (2), of NRI, 12/3/1997,
Exhibit 3] in an amended complaint to the OFCCP.
RELIEF REQUESTED
Plaintiff seeks damages under subsection (g)(1)(C) of the Privacy Act for the
agency’s violations of subsection (e)(5) of the Privacy Act..
Plaintiff requests civil damages to be paid in the amount suffered by the
plaintiff’s loss of recovery to seek lost wages from the defense contractor for
retaliatory discharge due to the OFCCP’s wrongful determination, or $100,000 (US).
Respectfully submitted:
D. G. Sweigert
CERTIFICATE OF SERVICE
A true and accurate copy of the foregoing pleading was hand carried to the Ass’t
U.S. Attorney’s office at room 604, 101 West Lombard Street, Baltimore, MD 21201
on March ____, 1998.
Certified under the penalties of perjury:
D. G. Sweigert
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
Exhibit 5
Exhibit 6
Exhibit 7