The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Linda Boyd brings this action against her employer, the
Internal Revenue Service ("IRS"), under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.*fn1 She asserts that her first-level supervisor, Joel
Helke, sexually harassed her; that the agency retaliated against
her after she reported his alleged harassment; and that Mr. Helke
violated the Privacy Act, 5 U.S.C. § 552a(b), by disclosing her
rebuttal statement to her June 1999 performance evaluation to
others in the office. Pending before the Court is the IRS's
motion for summary judgment. For the following reasons, the
motion will be granted in part and denied in part. Judgment will
be granted in the IRS's favor on Ms. Boyd's retaliation claim,
but trial will proceed on her sexual harassment and Privacy Act
On July 6, 1998, Ms. Boyd began working as a trial attorney in
the IRS's Office of Chief Counsel, Field Services Division ("FS
Division"), Financial Institutions and Products Branch ("FIP Branch"). Previously, she had clerked for a judge on the
Maryland Court of Special Appeals, had worked in private
practice, and had served in the Office of the Attorney General of
Maryland According to Ms. Boyd, she was hired at the IRS "at the
grade 13, step 10 and after one year [she was to] be promoted to
a grade 14, step 10." Pl.'s Dep. at 27. From July 6, 1998, to
June 20, 1999, Mr. Helke was Chief of the FIP Branch and thus Ms.
Boyd's first-level supervisor. Deborah Butler, then Assistant
Chief Counsel of the FS Division, and Curtis Wilson, then Deputy
Assistant Chief Counsel, were Ms. Boyd's second-level supervisors
during that same time period.
Ms. Boyd alleges that Mr. Helke "started harassing and
intimidating her, making inappropriate sexual remarks, touching
himself in private areas, and creating a hostile work environment
almost immediately after [she] began working at the agency and
continued for most of the one year period of his supervision of
[her]." Pl.'s Mem. of Pts. & Auths. in Opp. to Def.'s Mot. for
Summ. J. ("Pl.'s Opp.") at 3. Specifically, she asserts that Mr.
Helke backed her into a file cabinet or wall and touched her
shoulders or arms once in October 1998, twice in November 1998,
once in December 1998, once in January 1999, and twice in
February 1999. Pl.'s Dep. at 65-69, 72-79, 79-81, 90-92, 109. Ms.
Boyd also contends that "any time [she] saw [Mr. Helke] he would
invariably make a sexual reference of some sort or he would stand
there and grab his penis and testicles and rearrange himself."
Id. at 53. His remarks allegedly included, "I wish I were
wellhung" and "I'm having trouble getting it up." Id. at 51.
Ms. Boyd initially complained about Mr. Helke's conduct to
Patrick Putzi and Eileen Shatz following the alleged incidents in
October and November 1998 and February 1999, respectively. Mr.
Putzi and Ms. Shatz were senior, non-supervisory attorneys
assigned to Ms. Boyd's section. Ms. Boyd later voiced her
concerns to Teri Culbertson, Technical Assistant for the Assistant Chief Counsel, on March 5, 1999. Ms. Culbertson
suggested that Ms. Boyd talk about her problem with Mr. Wilson,
which she did on March 10 or 11, 1999. During her first meeting
with Mr. Wilson, Ms. Boyd told him "about Helke's harassment,
including the physical part, but downplayed the physical part
because she was terrified of what Helke would do if he found
out." Pl.'s Opp. at 5. She also asked to be transferred out of
the FS Division. Ms. Boyd had two other similar discussions with
Mr. Wilson in March and one in May.
On May 13, 1999, Ms. Boyd met with Ms. Butler and Mr. Wilson
regarding Mr. Helke's treatment of her. Ms. Boyd again asked for
a transfer. The next day, Ms. Butler and Mr. Wilson met with
Carol Nachman, Special Counsel, and Mr. Helke. Both Ms. Nachman
and Mr. Helke denied Ms. Boyd's allegations. On May 17, 1999, Ms.
Butler and Mr. Wilson contacted Judith Dunn, Associate Chief
Counsel, and Daniel Wiles, Deputy Associate Chief Counsel. Mr.
Wiles recommended that Ms. Butler contact Elaine Green, Director
of the Equal Employment Opportunity ("EEO") Office. Thereafter,
Ms. Green assigned Bea Bernfeld to interview Ms. Boyd and Mr.
Helke. Both interviews occurred by June 1, 1999. Ms. Bernfeld
apparently concluded that Ms. Boyd's claims did not constitute
sexual harassment, although she did consider them serious. Ms.
Butler and Ms. Bernfeld therefore discussed other available
options. Ms. Green arranged for JoAnn Vaught to consult with Mr.
Helke and make recommendations on how to improve the situation
within the FIP Branch.
In subsequent meetings between Ms. Boyd and Ms. Butler, Ms.
Butler remarked that Ms. Boyd would need a waiver from her union
before being allowed to change positions due to the freeze on
transfers. Ironically, on May 17, 1999, Mr. Helke informed Ms.
Boyd that he was moving her office closer to his. Frightened at
this prospect, Ms. Boyd called Dan Wiles, Deputy Chief Counsel, and arranged a meeting for May 19, 1999. Mr. Wiles said
that he would consider her issues concerning Mr. Helke and her
request for a transfer, and that he would stop her office move.
In addition, he "advised that he wanted to have an EEO
representative look into her allegations." Def.'s Mem. of Pts. &
Auths. in Supp. of Mot. for Summ. J. ("Def.'s Mot.") at 7. A
couple of days later, Mr. Wiles told Ms. Boyd that he wanted her
to stay in the FS Division pending an evaluation by Mr. Helke.
Ms. Boyd received her final evaluation on June 9, 1999. Although
Ms. Boyd's ratings in nine of 24 categories were lower than what
she had been given in April 1999, Pl.'s Dep. at 125, her overall
rating remained the same, "fully successful." On June 11, 1999,
Mr. Wiles and Mr. Wilson met with Ms. Boyd and, with the approval
of the union, offered to transfer her to another division, Branch
On June 16, 1999, Ms. Boyd delivered to Ms. Butler a rebuttal
statement to the June 1999 performance appraisal. Mr. Helke's
supervisors then instructed him to prepare a response to her
allegations of discrimination and harassment. He allegedly showed
the rebuttal statement to several branch attorneys, including
Ms. Boyd contacted an EEO counselor on July 7 or 8, 1999. On
October 22, 1999, she filed a formal administrative complaint
with the IRS's EEO office. A final agency decision was issued on
May 31, 2001.
Summary judgment is appropriate when there is no genuine issue
as to any material fact and the moving party is entitled to a
judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This procedural
device is not a "disfavored legal shortcut" but a fair and
efficient method of resolving cases expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining
whether a genuine issue of material fact exists, the Court must
view all facts and reasonable inferences in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh,
27 F.3d 635, 638 (D.C. Cir. 1994).
Only disputes over facts that might affect the
outcome of the suit under the governing law will
properly preclude the entry of summary
judgment. . . . [S]ummary judgment will not lie if
the dispute about a material fact is "genuine," that
is, if the evidence is such that a reasonable ...