United States District Court, W.D. Wisconsin
STEPHEN P. HOOVER, Plaintiff,
THEODORE P. SZYMANSKI and UNITED STATES OF AMERICA, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
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
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
where noted, the following facts are undisputed.
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.
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
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.
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
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]