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Hoover v. Szymanski

United States District Court, W.D. Wisconsin

April 17, 2017

STEPHEN P. HOOVER, Plaintiff,
v.
THEODORE P. SZYMANSKI and UNITED STATES OF AMERICA, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         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 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 ...

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