The opinion of the court was delivered by: Louis F. Oberdorfer United State District Judge
In this Privacy Act case, the plaintiff, an employee of the United States Postal Service, alleges that the defendant, the United States Postal Service, violated her rights by publicly posting a non-public report that revealed that she had suffered a "nervous/psychological" work-related injury or illness. The defendant has filed a motion to dismiss for lack of jurisdiction or, in the alternative, for summary judgment. These motions have been assigned to the undersigned by consent. See May 18, 2006 Order. For the reasons stated herein, an accompanying Order grants the motion to dismiss for lack of jurisdiction.
The plaintiff, Denese Scott, is an employee of the United States Postal Service. During 2002, she sought medical attention for anxiety following an incident at her worksite. As required by law, the Postal Service reported her "work-related" illness to the Occupational Safety and Health Administration ("OSHA"). In early January 2003, again as required by law, the manager at Scott's worksite, Jerome Hotten, posted OSHA Form 300A, a statistical summary of all work-related injuries and illnesses for calendar year 2002, on the employee bulletin board. At the same time, Hotten also posted OSHA Form 300, a "Log of Work-Related Injuries and Illnesses," which was attached to OSHA Form 300A. OSHA Form 300 is not intended for public display. Indeed, on the top of Form 300 is a box which reads:
ATTENTION: THIS FORM CONTAINS INFORMATION RELATING TO EMPLOYEE HEALTH AND MUST BE USED IN A MANNER THAT PROTECTS THE CONFIDENTIALITY OF EMPLOYEES TO THE EXTENT POSSIBLE WHILE THE INFORMATION IS BEING USED FOR OCCUPATIONAL SAFETY AND HEALTH PURPOSES.
OSHA Form 300 lists the name of each employee and the type of injury suffered by that employee during the relevant year. For example, Scott's name appears next to a description of her injury as "nervous system/psychological." According to Hotten's uncontroverted declaration, he posted OSHA Form 300 by mistake because he was about to go on vacation and he was rushing around trying to get things done.
On or about January 10, 2003, after Hotten had left on vacation, Scott arrived at work to find a number of her co-workers gathered around the posted OSHA Forms, laughing. They began to make comments to her such as "I didn't know you were crazy," and "I hope you don't come back and kill us." After realizing that their comments were based on what they were reading about her injury on OSHA Form 300, Scott asked her supervisor, Jalen Wellington, to remove it. He refused. He also did nothing to stop the other employees from tormenting Scott. Regina Rogers, another employee and the union representative for the station, also asked Wellington to remove the forms, but he again refused. After approximately 30 minutes of continued teasing, during which time Scott went to the bathroom several times to cry, Scott removed the forms herself.
Scott ended up leaving work early that day and requesting sick leave. That evening she contacted a crisis therapist through her health plan, who arranged for her to see a psychotherapist that evening. Ultimately, a doctor at her health plan prescribed Xanax and she was in treatment for over a month. She returned to work approximately one month later.
B. Federal Employees' Compensation Act Claim
On January 23, 2003, Scott filed a "traumatic injury" claim with the Office of Workers' Compensation Programs (the "Office") seeking to recover under the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. §§ 8101 et seq., for the injuries she claimed to have suffered as a result of the January 2003 incident. FECA is a workers' compensation scheme governing civilian employees of the United States, including employees of the United States Postal Service. It provides, subject to certain exceptions not relevant to the present case, that "[t]he United States shall pay compensation . . . for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty . . . ." 5 U.S.C. § 8102(a). It also provides that the "liability of the United States . . . under this subchapter . . . with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States . . . to the employee . . . ." Id. § 8116(c). Thus, FECA guarantees employees "the right to receive immediate, fixed benefits, regardless of fault and without need for litigation, but in return they lose the right to sue the Government." Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983).
In a FECA proceeding "involving emotional conditions," where "working conditions are alleged as factors in causing the disability," the Office:
must make findings of fact regarding which working conditions are deemed compensable factors of employment and are to be considered by a physician when providing an opinion on causal relationship. If a claimant implicates a factor of employment, the Office should then determine whether the evidence of record substantiates that factor. When the matter asserted is a compensable factor of employment and the evidence of record ...