The opinion of the court was delivered by: PAUL L. FRIEDMAN
Joel D. Webb served as an agent of the United States Secret Service from December 14, 1970, to June 14, 1979. He alleges that between 1980 and 1993 he attempted to seek employment with other local and federal government agencies, but has been consistently denied employment because of allegedly false statements about his employment history made by the Secret Service. Mr. Webb filed suit pursuant to the Privacy Act, 5 U.S.C. § 552a, to correct alleged inaccuracies in his employment records at the Secret Service and for damages. The defendants are the United States Secret Service and its employees Melvin E. Laska, Jack E. Kippenberger and William B. Coggins. Plaintiff and defendants each filed a motion for summary judgment, and the Court heard argument on the motions on February 27, 1995. The Court finds that there are no issues in dispute that are material to disposition of this matter and that defendants are entitled to judgment as a matter of law.
Mr. Webb alleges that for the first seven and one half years of his employment at the Secret Service his supervisors gave him satisfactory performance reviews and that he consistently received promotions. He did not receive a similar performance rating for the last year of his employment with the Service after he had transferred to the Service's Palm Beach and then Miami field offices. Just prior to his resignation, Mr. Webb received an unsatisfactory performance appraisal from Charles Howell, the supervisor in the Service's Miami Field Office. Deposition of Joel Webb at 17. After Mr. Webb resigned, he also received an unfavorable evaluation in a Reemployment Recommendation form filled out by Jack Kippenberger, who had supervised Mr. Webb for eleven months in the Palm Beach Field Office. Attachment 9 to Plaintiff's Motion For Summary Judgment ("Pl. Mot.") Mr. Kippenberger's negative evaluation is the heart of Mr. Webb's Privacy Act claims.
To the form's question "how would you rate employee," Mr. Kippenberger checked the box stating "below average," and commented that "the employee was found to be unreliable, irresponsible, inconsistent, and lacks good judgment." Pl. Mot. Attach. 9. In response to the question "would you recommend employee be reemployed," Mr. Kippenberger checked the box next to the answer "no." Id. To explain his view, he wrote:
Id. The Reemployment Recommendation form completed by Mr. Kippenberger was placed in Mr. Webb's personnel file on August 28, 1979.
In 1980 and 1982, defendant William B. Coggins of the Secret Service answered the employment questionnaires of three different nonfederal entities that were considering hiring Mr. Webb but did not. In his answers, Mr. Coggins paraphrased and quoted from the Reemployment Recommendation form completed by Mr. Kippenberger. See Pl. Mot. Attach. 14, 16. In each of these instances, Mr. Webb had signed a form releasing the Secret Service from any liability arising from the release of the agency's information about Mr. Webb to the inquiring potential employer.
In 1991, the Secret Service allowed the Department of Housing and Urban Development, which was considering hiring Mr. Webb, to review Webb's personnel files. After reviewing the pertinent records and contacting Mr. Kippenberger, HUD decided not to hire Mr. Webb. The HUD report of its investigation noted that the personnel file reflected that Mr. Coggins had commented that Mr. Webb's cooperation and loyalty were average and that he was "unreliable, lacked initiative, and had a general rating below average." Pl. Mot. Attach. 20. The HUD report discussed Mr. Kippenberger's Reemployment Recommendation form, noting that he had stated that Mr. Webb was "unreliable, irresponsible, inconsistent, and lacked good judgment[,] that after eight and a half years with the USSS, Webb was unable to comprehend the basics of investigation and report writing[, and] that Webb was incapable of performing duties without guidance and supervision." Id. The report stated that Mr. Hilton Green of HUD had a telephone conversation with Mr. Kippenberger who said "he would not recommend Webb for a position in federal law enforcement." Id. Plaintiff maintains that he first learned about the negative statements in his Secret Service personnel records in 1991 only after HUD had rejected his application for employment and Mr. Webb had received the HUD report through a Freedom of Information Act request.
At oral argument, counsel for plaintiff confirmed that the only allegedly false statements in dispute are those that Mr. Kippenberger wrote on the Reemployment Recommendation form, Mr. Coggins' statements in answer to employment questionnaires that paraphrased or restated Mr. Kippenberger's answers on the Reemployment Recommendation form, and Mr. Kippenberger's oral statements to Mr. Green. Plaintiff argues that Mr. Kippenberger's statement falsely describes Mr. Webb's performance as unsatisfactory for his entire eight and one half year career with the Secret Service.
Plaintiff makes several Privacy Act claims: failure to permit plaintiff access to his complete personnel record in violation of 5 U.S.C. § 552a(d)(1); refusal to correct plaintiff's personnel record in violation of 5 U.S.C. § 552a(d)(2); refusal to permit plaintiff to file a statement of disagreement with the personnel record in violation of 5 U.S.C. § 552a(d)(3); failure to maintain in its records only the information about plaintiff that was relevant and necessary in violation of 5 U.S.C. § 552a (e)(1); and failure of the Secret Service to make reasonable efforts to assure that its records regarding plaintiff were accurate prior to dissemination of records to prospective employers in violation of 5 U.S.C. § 552a(e)(6). Plaintiff seeks a copy of all his personnel records, the opportunity to file a statement disputing the contents of his personnel file, and the amendment or purging of the allegedly false information. Plaintiff also seeks damages in the amount of $ 765,905.72 for the Secret Service's maintenance and dissemination of inaccurate information. In addition, plaintiff alleges intentional infliction of emotional distress and defamation against the individual defendants.
A. Summary Judgment Standard
Under Rule 56, Fed. R. Civ. P., summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence selling forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is "required to provide evidence that ...