The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE
Although cigarette packages have carried the Surgeon General's admonition about the hazards of smoking for several decades, the effects of "passive" or "involuntary" smoking on nonsmokers have only recently been documented.
This lawsuit, filed by plaintiffs Anna and Ernest Carroll, seeks declaratory, injunctive and monetary relief for defendants' failure to maintain a smoke-free work environment and for defendants' response to plaintiff Anna Carroll's concerns about her sensitivity to cigarette smoke. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment; plaintiffs have opposed that motion. For the reasons set forth below, defendants' motion is granted in part and denied in part.
Plaintiff Anna Carroll is currently employed in the Washington, D.C. office of defendant Tennessee Valley Authority (TVA). Plaintiff
has worked in TVA's Washington office for fifteen years and has served as the agency's Washington Affairs Coordinator since 1983. The complaint alleges that TVA's Washington office is small and poorly ventilated, that plaintiff shared office space with co-workers who smoked and that visitors to the office often smoked in a conference room adjacent to plaintiff's work area. In early 1985, plaintiff began experiencing problems with her breathing and, after consulting several doctors who warned her against further exposure to tobacco smoke, she submitted several written requests for a smoke-free work environment to her supervisor, Kenneth Gray, the head of TVA's Washington office. The complaint further contends that Gray ignored her requests, as well as recommendations from other TVA officials, to ensure a smoke-free workplace, told plaintiff's fellow workers about her smoke complaints, failed to carry out TVA guidelines on smoking in the workplace, retaliated against plaintiff by giving her poor performance ratings and verbally harassed her in front of her co-workers.
Plaintiff brought this suit against TVA, its Chairman, Charles H. Dean, its Director, John B. Waters, Jr., and Kenneth E. Gray. Specifically, plaintiff alleges that (1) defendants' failure to maintain a smoke-free work environment violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 & 794, amounted to common law negligence and negligence per se and constituted a breach of her employment contract;
(2) the harassment and intimidation she endured constitutes intentional infliction of emotional distress; and (3) the dissemination of material in plaintiff's personnel file concerning her medical condition violated the Privacy Act, 5 U.S.C. § 552a(b), and the First, Fourth and Fifth Amendments to the Constitution. As relief, plaintiff seeks a declaratory judgment that defendants' actions contravened the Rehabilitation Act, an injunction ordering defendants to reasonably accommodate plaintiff's handicap (respiratory and lung ailments), and compensatory and punitive damages.
In response, defendants claim that this Court does not have personal jurisdiction over defendants Dean and Waters; that plaintiff has sued the wrong parties in her Privacy and Rehabilitation Act claims; that the Federal Employees' Compensation Act, 5 U.S.C. §§ 8101 et seq., bars recovery in this case; and that plaintiff's common law tort claims may not be pressed against federal officials and are barred by the doctrine of official immunity. The Court addresses these claims seriatim.
Defendants first contend that this Court lacks personal jurisdiction over defendants Dean and Waters, the current members of TVA's Board of Directors, with respect to plaintiff's Rehabilitation Act claim.
Although admitting that Dean and Waters were properly served by certified mail at their offices in Knoxville, Tennessee, defendants argue that, because all of the acts alleged in the complaint took place in the District of Columbia, this Court may not effect extraterritorial service of process absent a statute authorizing it to do so.
Plaintiff first relies on the provisions of the Rehabilitation Act to support personal jurisdiction. Section 505 of the Act, 29 U.S.C. § 794(a)(1), provides that the procedures set forth in the Civil Rights Acts of 1964, 42 U.S.C. § 2000e et seq., govern Rehabilitation Act claims. Plaintiff and defendant dispute whether personal jurisdiction is proper under Section 706 of the Civil Rights Act, 42 U.S.C. §§ 2000e-5(f)(3), which provides that
Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.
This provision does not, however, deal with personal jurisdiction.
The first sentence of Section 706 empowers federal district courts to hear Title VII and Rehabilitation Act actions and thus confers subject matter jurisdiction over these claims. The second and third sentences specify where actions may be brought; they are classic venue provisions. Accordingly, although subject matter jurisdiction and venue may be predicated on 42 U.S.C. § 2000e-5(f)(3), personal jurisdiction may not.
Plaintiff also claims that extraterritorial service is proper under 28 U.S.C. § 1391(e), which provides that, in suits against federal agencies or federal officers acting in their official capacity, "delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought." Defendants argue that plaintiff's claim is foreclosed by the decision in Jones v. United States Nuclear Regulatory Commission, 654 F. Supp. 130 (D.D.C. 1987), where this Court held that extraterritorial service of process was not proper against TVA under 28 U.S.C. § 1391(e) in a Freedom of Information Act suit. That decision does not sweep as broadly as defendants would have it, however. Although recognizing that other courts had held that 28 U.S.C. § 1391(e) is inapplicable to TVA, 654 F. Supp. at 131, and noting that "the designations of this district as an appropriate forum for venue purposes in FOIA suits should not, without more, confer on this court extraordinary power to issue nationwide service against all entities subject to that statute," id. at 132, this Court also observed that a defendant's presence in the District of Columbia would suffice to confer personal jurisdiction. Thus, after pointing out that the FOIA statute did not mention service of process or personal jurisdiction, the Court stated that "that of course is not a problem when the defendant is a government agency, since many agencies are headquartered or otherwise present here ". id. at 131 (emphasis added), and noted that plaintiff was seeking to rest personal jurisdiction "on neither the federal venue statute nor TVA's presence in this district." Here, by contrast, all of the actions ...