that it was the only decision in existence at that point on this particular issue. Once a decision is rendered by a District Court holding that an agency is subject to the Privacy Act, it is no longer reasonable for that agency to totally ignore the only existing case law (which it failed to appeal) simply because it thinks it was erroneously decided. For these reasons, the Defendant's violation of the Privacy Act was clearly willful and intentional.
To invoke the Privacy Act's civil remedy provision, Plaintiff must also establish that the agency's intentional or willful violation of the act had an adverse effect on her. Upon this showing, Plaintiff is entitled to actual damages sustained as a result of the violation. The statute provides, however, that in no case shall a person entitled to recovery under the statute based on its willful violation receive less than the sum of $ 1,000, and the costs of the action together with reasonable attorney fees as determined by the court. 5 U.S.C. § 552a(g)(4) (1994).
Actual damages under this provision of the statute encompass not only pecuniary losses, but also the ordinary elements of compensatory damages, such as mental depression and physical injury when these elements are supported by evidence in the record. Johnson v. Department of Treasury, 700 F.2d 971, 984-986 (5th Cir. 1983).
In this case, Plaintiff claims damages for emotional trauma and distress and harm to her reputation. No claims were submitted for any out-of-pocket expenses.
In support of her claim of emotional harm, the Plaintiff testified that she has suffered from extensive and constant sleeplessness at night. Her condition has not been severe enough to require either medical or psychiatric care. Although the necessity of medical treatment is certainly not a requirement of establishing emotional distress, it is an indication of the existence and severity of the distress.
There is no evidence in the record that the emotional distress that Plaintiff suffered was so severe that it affected her in any other area of her life. At work she continued to excel and be promoted. No evidence suggests that her interpersonal relationships outside of work were affected by emotional distress. The Court credits the testimony that the Plaintiff was certainly upset over this matter and suffered sleeplessness. The distress was not severe enough, however, to warrant an award of damages.
The Plaintiff also claims damages for harm to her reputation. Certainly there was no harm to her reputation at work based on objective indicia. The record demonstrates that, since the incident in question, the Plaintiff was promoted to a civil service rating of GS-9, and at least on one occasion received an outstanding rating on her performance evaluation. Nothing in the record suggests that any negative work appraisals or demotions occurred.
The two individuals in New York, however, Ms. Chuk and Ms. Farynyk, certainly had some adverse reaction upon learning of Ms. Dong's unauthorized courier trip. Suspicions were created and red flags were raised in the minds of both of those individuals. Both women knew that the calls from Ms. Pierce and Mr. Robinson were most unusual and unorthodox. Ms. Chuk indicated clearly that in the future, if any kind of doubt arose about what Ms. Dong was requesting, she would contact Ms. Dong's supervisor.
While there is nothing tangible in the record to show loss of reputation or an actual impact on reputation, the Court recognizes from the testimony given in this case that this is a very small professional world. In this small world, many of the registrars know each other, and it is easy for one negative hint or intimation about Ms. Dong's integrity to have a ripple effect that could adversely affect her throughout that small professional community.
Therefore, the Court concludes that there was direct injury to Ms. Dong's reputation in terms of Ms. Chuk and Ms. Farynyk and indirect injury in terms of the small, rather close-knit professional milieu in which Ms. Dong worked. The injury was not severe, but when we are speaking of something as important, as amorphous, and as evanescent as reputation, even the slightest whisper can stain a lifetime of hard work.
Having considered all of the facts recited herein, as well as the existence of damages but lack of severity, the Court awards damages in this case in the sum of $ 2,500. The Court will entertain within 15 days a request for attorneys' fees. Accordingly, it is this 31st day of October, 1996, hereby
ORDERED that Defendant is adjudged liable for its unlawful collection of employment information about Plaintiff, under the Privacy Act, 5 U.S.C. § 552a(e)(2); and it is further
ORDERED that Defendant is liable to Plaintiff for $ 2,500 in compensatory damages.
United States District Judge
© 1992-2004 VersusLaw Inc.