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THOMPSON v. DEPARTMENT OF STATE

August 31, 2005.

JILL THOMPSON, Plaintiff,
v.
DEPARTMENT OF STATE, Defendant.



The opinion of the court was delivered by: ELLEN HUVELLE, District Judge

MEMORANDUM OPINION*fn1

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.

BACKGROUND

  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."] ¶ 5.)

  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 career." (Id.)

  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

  I. Legal Standard

  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. Cir. 1989).

  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. Cir. 2002).

  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 ...


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