The opinion of the court was delivered by: ELLEN HUVELLE, District Judge
Plaintiff is employed as a Foreign Service Officer for the
Department of State ("the Department"). She claims that her
employer violated the Privacy Act, 5 U.S.C. § 552a et seq.,
while investigating allegations that plaintiff's supervisor had
promoted her career to the detriment of others as a result of his
romantic involvement with her. The parties have cross-moved for
summary judgment. For the reasons set forth below, the Court
concludes that defendant's motion for summary judgment should be
granted and plaintiff's cross-motion should be denied.
Plaintiff worked in the Office of International Financial
Services ("IFS") within the Bureau of Financial Management Policy
("FMP") on a two-year tour of duty starting October 16, 2000.
(Def.'s Resp. to Pl.'s Rule 7(h) St. ["Def.'s Resp."] ¶¶ 1-2.)
Beginning in early 2001, two co-workers in IFS began complaining to FMP senior management that
plaintiff and her supervisor were romantically involved and that
this relationship was having an adverse impact on the office.
According to these employees, the supervisor was transferring
work assignments from one of them to plaintiff and singling
plaintiff out for other benefits, such as assigning her to be
supervisor over the complaining employees and giving her an
office instead of a cubicle. (Def.'s Resp. ¶ 7; see Def.'s
Mot., Ex. 3 (Report of Investigation) ["ROI"] at 2-4, 8-9.) They
also alleged that the supervisor became hostile towards anyone
who expressed disagreement with plaintiff and that his
relationship with plaintiff otherwise contributed to the office's
dysfunctionality. For instance, one coworker claimed that the
time that plaintiff and her supervisor spent together both in and
out of the office made it difficult to approach either of them
with questions. Because both would "disappear incommunicado from
the office . . . [,] no one knew what time key issues and
meetings were occurring." (See ROI at 9.) Further, the
allegations suggested that plaintiff's supervisor had used
federal funds to accompany plaintiff on business trips for
personal reasons. (See id. at 3, 10.)*fn2
In response to these allegations and based on the advice of the
Office of Diplomatic Security ("DS"), the Bureau of Human
Resources ("HR"), and other offices within the Department, the
FMP Executive Office initiated an inquiry in August or September
2001. (Def.'s Resp. ¶¶ 8-9.) The Executive Director of FMP,
William Todd, and a human resources specialist, Helen Driver,
reviewed e-mail messages that had been retrieved from the
supervisor's office mailbox, solicited written memoranda from the two
coworkers who had initially complained (see Def.'s Mot., Ex. 1
[Coworker 1 Mem.]; Pl.'s Reply, Ex. 14 [Coworker 2 Mem.]), and
questioned another employee about personal photographs plaintiff
had allegedly sent her supervisor at the office. (See Def.'s
Mot., Ex. 4 ["Driver Dep."] at 64-65.) Todd soon halted this
inquiry in response to the supervisor's demands that it be
conducted by an independent office.
DS agreed to resume the investigation following discussions
involving HR, the Office of Civil Rights ("OCR") and the
Inspector General's Office, and at the specific request of OCR
Director Barbara Pope.*fn3 (See Def.'s Mot, Ex. 5
["Rolph-O'Donnell Dep."] at 23; Pl.'s Opp'n, Ex. 12 ["Pope Dep."]
at 20.) DS assigned the investigation to Special Agent Thomas
Scanlon, who began his interviews in October 2001. (Def.'s Resp.
¶ 19.) The investigation concerned whether plaintiff and her
supervisor were in fact romantically involved, how their
relationship had impacted the work environment, and whether they
had conspired to promote plaintiff's career at the expense of
others in the office. (See ROI at 1.) Although plaintiff was
not originally a subject of the investigation, Scanlon added her
as a subject when information surfaced suggesting that she may
have collaborated with her supervisor to obtain the work
responsibilities of other employees. (Scanlon Dep. at 33-34.)
At the time the DS investigation began in early October,
plaintiff was on medical leave due to a brain hemorrhage.*fn4 Upon plaintiff's return to
work in November 2001, Pope arranged for plaintiff to be placed
on a two-week detail in the HR Executive Office rather than
returning to IFS. (Def.'s Resp. ¶¶ 15-16; Pl.'s Opp'n, Ex. 13.)
According to defendant, the detail was arranged to ensure the
integrity of the investigation and to respond to plaintiff's
complaints that the atmosphere in IFS was so stressful as to pose
a threat to her health. (Def.'s Reply at 24.) Plaintiff disputes
this explanation, claiming that the detail was merely a "pretext
to dispense with Plaintiff and leave her without a job," as
evidenced by its duration of over three months instead of the
intended two weeks.*fn5 (Pl.'s Reply at 17.)
During the investigation, Scanlon reviewed the two complaining
employees' statements and e-mail messages between plaintiff and
her supervisor (Def.'s Mot., Ex. 8) and interviewed 15 witnesses.
(See ROI at 1-35.) After completing all witness interviews,
Scanlon interviewed plaintiff in the company of her lawyer on
November 26, 2001. (Id. at 36.) Scanlon provided plaintiff with
a "Warning and Assurance" form at the beginning of the interview,
which she executed. (See Scanlon Dep. at 36; Def.'s Mot., Ex.
7.) The investigation concluded on December 6, 2001, with the
issuance of a 75-page ROI, which contained tentative findings and
two separate binders of supporting documents. (Def.'s Resp. ¶
46.) The ROI concluded that "[b]ased on E-mails and employee
interviews there [was] a strong likelihood that [plaintiff and
her supervisor] had a relationship, which negatively impacted the
office and other employees." (ROI at 74.) At the conclusion of the investigation, FMP provided a copy of
the ROI to OCR. (Def.'s Resp. ¶ 55; ROI cover page.) Plaintiff
alleges that the ROI or other information concerning the
investigation was also placed in her security file. (See Pl.'s
Rule 7(h) St. ¶ 68 (claiming she was questioned about the
investigation in her security update interview).) Finally, DS
also forwarded a copy of the ROI to the Foreign Service Grievance
Board ("FSGB") for adjudication of a grievance filed by plaintiff
(id. ¶ 65), since the report itself was one of the issues
raised by plaintiff in her grievance. (See Pl.'s Opp'n, Ex. 4
["FSGB Op."] at 27 ("Grievant contends the ROI is riddled with
errors, misrepresentations and prejudicial information.").)
On April 22, 2002, HR proposed to suspend plaintiff for three
workdays without pay for allegedly making false or misleading
statements during the DS investigation. (Def.'s Mot., Ex. 10.)
After consultation with plaintiff and review of her written
response to the disciplinary letter, HR mitigated this sanction
to a Letter of Admonishment for an "inappropriate . . . volume of
e-mails . . . that at best could be viewed as suggestive in
tone." (Def.'s Mot., Ex 12 at 1.) This letter was to be
maintained by the Office of Employee Relations for one year.
(Id. at 2.)
State Department regulations require that all employees shall
"[s]ee that personal information about individuals is properly
safeguarded and protected from unauthorized disclosure, e.g.,
use of locked file cabinet, password protected systems." (Pl.'s
Reply, Ex. 19 (5 Foreign Affairs Manual ("FAM") § 462(a)(7)).)
Despite these practices, plaintiff found that the suspension
letter and a copy of the ROI, both in a sealed envelope, along
with two binders containing attachments to the ROI, had been left
on her cubicle chair while she was out of the office on vacation.
(Pl.'s Opp'n, Ex. 26 ["Thompson Dep."] at 174-75.) Although
defendant claims that plaintiff consented to the delivery to her
empty cubicle, plaintiff disputes this statement. (See id.; Def.'s Mot., Ex. 13 ["Coviello Decl."] ¶
During the investigation, plaintiff was suffering from ongoing
health problems. Letters from her doctors requested that her
office make all necessary efforts to shield her from stressful
situations that might aggravate her physical condition.*fn6
(See, e.g., Def.'s Reply, Ex. 4; Pl.'s Opp'n, Ex. 17.)
According to defendant, the Department became concerned as a
result of these communications that plaintiff's medical problems
(particularly her inability to handle stress) would impact her
eligibility for security clearance. As a result, defendant
responded to plaintiff's neurologist, Dr. Sam Oraee, with a
request that he send additional, detailed medical information to
Dr. Athena Moundalexis at the Department. (Pl.'s Opp'n, Ex. 20
["Def.'s Resp. to Interrogatories"] No. 8.) Defendant solicited
this information directly from Dr. Oraee without plaintiff's
knowledge or consent. (See id., Ex. 19 (Letter from Caron A.
McConnon, Chief, Personnel Security/Suitability Division, DS to
Dr. Sam Oraee, Dec. 7, 2001) ["McConnon Letter"].) The record is
unclear as to whether Dr. Oraee ever provided the requested
information to the Department. Although plaintiff presents an
envelope addressed to Dr. Moundalexis from Dr. Oraee (id., Ex.
22 (postmarked Dec. 22, 2001)), she also told her lawyer upon her
discovery of the letter, that Dr. Oraee "did not respond because
to do so would have violated doctor-patient confidentiality."
(Id., Ex. 49.) Plaintiff discovered the McConnon letter in her
doctor's files while seeking medical information to apply for a
"reasonable accommodation" in early 2002. (Id., Ex. 46
["Thompson Aff."] ¶ 3.) She asserts that this discovery triggered
the onset of anxiety attacks and a compulsive hair-pulling
disorder (i.e., trichotillomania) because she concluded that defendant was "seeking a pretext to end her foreign service
Plaintiff also claims a link between her medical and emotional
problems and other alleged violations of the Privacy Act. She
submits medical evidence from a psychiatrist who attributes the
psychological impact and plaintiff's severe pain and suffering to
"what she perceives to be the deliberate infliction of stressful,
coercive, and inhuman treatment by officials and employees at the
[Department]." (Def.'s Mot., Ex. 22 ["Crowley Report"] at 4.) The
expert further opines that plaintiff's "physical symptoms which
began in 2002 (panic attacks, heart palpitations, disorientation,
alopecia, trichotillomania) are . . . causally connected to her
fear and prolonged anguish over what she regards as the
government's betrayal of her safety and her belief that the State
Department treated her with deliberate cruelty in a malevolent
planned assault." (Id.)
Plaintiff seeks damages for seven alleged violations of the
Privacy Act: (1) collecting information about plaintiff from
third parties when it was practicable to collect it from her in
violation of subsection (e)(2); (2) failing to properly warn
plaintiff before interviewing her in violation of subsection
(e)(3); (3) maintaining information about plaintiff that is not
necessary to accomplish a purpose of the agency in violation of
subsection (e)(1); (4) maintaining inaccurate records that
resulted in an adverse determination against plaintiff in
violation of subsection (e)(5); (5) disclosing records about the
plaintiff to the OCR Director, Barbara Pope, who did not need the
record for her duties in violation of subsection (b)(1); (6)
disseminating an inaccurate record about plaintiff to the FSGB in
violation of subsection (e)(6); and (7) failing to establish
appropriate safeguards to ensure the privacy of records
concerning plaintiff in violation of subsection (e)(10). Both
parties have moved for summary judgment on all counts. ANALYSIS
Under Fed.R.Civ.P. 56, a motion for 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, and that the moving
party is entitled to judgment as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (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
[her] favor." Id. at 255; see also Wash. Post Co. v. United
States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.
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 setting 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
(1986). The non-moving party must provide evidence that would
permit a reasonable jury to find in the non-moving party's favor.
Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C. Cir.
1987). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted."
Liberty Lobby, 477 U.S. at 249-50 (citations omitted). The
Court "must assume the truth of all statements proffered by the
party opposing summary judgment," except for wholly conclusory
statements unsupported by any competent evidence. Greene v.
Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999); Dickerson v.
SecTek, Inc., 238 F. Supp. 2d 66, 73 (D.D.C. 2002).
II. Privacy Act Causes of Action Generally
Plaintiff seeks monetary damages for seven purported violations
of the Privacy Act pursuant to 5 U.S.C. § 552a(g)(1)(C)-(D). To obtain damages under
either subsection, plaintiff must prove that the agency's conduct
was "intentional or willful." 5 U.S.C. § 552a(g)(4). Proof of
"actual damages" is also required in order to recover either the
statutory minimum of $1,000 or damages in excess of that amount.
See id.; Doe v. Chao, 540 U.S. 614, 618 (2004).
Subsection (g)(1)(C) concerns the accuracy of records and
provides a cause of action against a federal agency that
maintains a system of records when it "fails to maintain any
record . . . with such accuracy . . . and completeness as is
necessary to assure fairness . . . and consequently a
determination is made which is adverse to the individual."
5 U.S.C. § 552a(g)(1)(C). This subsection provides the exclusive
damages remedy for violations of subsection (e)(5), which
requires an agency to "maintain all records which are used by the
agency in making any determination about any individual with such
accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in the
determination." See Doe v. United States, 821 F.2d 694, 697 n.
8 (D.C. Cir. 1987) (en banc) (noting that the standard in
subsection (e)(5) is reiterated in (g)(1)(C)); Deters v. United
States Parole Comm'n, 85 F.3d 655, 660-61 & n. 5 (D.C. Cir.
1996) (requiring suit under subsection (g)(1)(C), not (g)(1)(D),
for violation of subsection (e)(5)). Thus, under subsection
(g)(1)(C), a plaintiff must establish "inaccurate records, agency
intent, proximate causation, and an `adverse determination.'"
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C.
Subsection (g)(1)(D) is a residual cause of action for damages
that covers any other violation of the Privacy Act and requires a
plaintiff to prove that the agency failed to comply "in such a
way as to have an adverse effect on [the plaintiff]."
5 U.S.C. § 552a(g)(1)(D). Therefore, under subsection (g)(1)(D), a plaintiff
must establish: (1) a violation of a Privacy Act provision, "(2) that the [agency's] decision . . . was `intentional or
willful,' (3) that the [violation] caused `adverse effects,' and
(4) that the plaintiff? suffered actual damages." Albright v.
United States, 732 F.2d 181, 184 (D.C. Cir. 1984).
III. Collection of Information Subsection (e)(2)
Subsection (e)(2) of the Privacy Act requires federal agencies
that maintain systems of records to "collect information to the
greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about
an individual's rights, benefits, and privileges under Federal
programs." 5 U.S.C. § 552a(e)(2). Plaintiff alleges that
defendant violated subsection (e)(2) by: (1) interviewing other
employees before interviewing plaintiff during the FMP and DS
investigations and (2) soliciting plaintiff's medical information
directly from her neurologist rather than requesting it from her.
She argues, and the Court agrees, that the information in both
circumstances could have resulted in "an adverse determination"
about plaintiff's "rights, benefits, and privileges," thereby
triggering the agency's (e)(2) obligation. Id. The information
gathered in the investigations in fact led to disciplinary action
(see Def.'s Mot., Exs. 10, 12), and DS requested the medical
information explicitly to make a determination as to plaintiff's
suitability for a security clearance (see McConnon Letter at
1). Thus, the issue for the Court is whether the agency collected
information "to the greatest extent practicable" directly from
plaintiff. 5 U.S.C. § 552a(e)(2).
Subsection (e)(2) was designed to "`discourage the collection
of personal information from third party sources and therefore to
encourage the accuracy of Federal data gathering.'" Waters v.
Thornburgh, 888 F.2d 870, 874 (D.C. Cir. 1989) (quoting
Analysis of House and Senate Compromise Amendments to the
Federal Privacy Act, 120 Cong. Rec. 40,405, 40,407 (1974) [hereinafter "Staff Analysis"]). "It reflects
congressional judgment that the best way to ensure accuracy in
general is to require the agency to obtain information `directly
from the individual whenever practicable.'" Id. (quoting Office
of Management and Budget Privacy Act Guidelines,
40 Fed. Reg. 28,949, 28,961 (July 9, 1975) (hereinafter "OMB Guidelines")).
"It supports `the principle that an individual should to the
greatest extent possible be in control of information about him
which is ...