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Doe v. United States Dep't of the Treasury

July 8, 2009


The opinion of the court was delivered by: Paul L. Friedman United States District Judge


This is a lawsuit brought under the Privacy Act, 5 U.S.C. § 552a. Plaintiff J.Q. Doe is a former employee of the IRS who has been permitted to proceed under a pseudonym. She alleges that the IRS improperly disclosed Privacy Act-protected records pertaining to her and thereby caused her to suffer actual damages. On March 30, 2009, this Court issued an Order and Judgment granting the IRS's motion for summary judgment, entering judgment in the IRS's favor, and noting that "[a]n Opinion explaining the Court's reasoning will follow." Doe v. IRS, Civil Action No. 05-0690, Order and Judgment (D.D.C. Mar. 30, 2009).*fn1 This Opinion sets forth the Court's reasoning for granting the IRS's motion for summary judgment and entering judgment in favor of the IRS.


Ms. Doe worked for the IRS for more than 12 years. At the time of the events in question, she was employed as the Chief of the Systems Development Branch of the Internal Revenue Service. See Plaintiff's Statement of Material Facts ¶ 4 ("Pl.'s Facts"). In or about September 2001, one of Ms. Doe's subordinates, Gerald M. Fenton, contacted a job applicant [who applied for a position at the IRS in 2000]... and told that applicant [that] he was not selected... because [Ms. Doe] had discriminated against [the applicant] on the basis of [the applicant's] sexual orientation. Mr. Fenton [also] told the job applicant [that Mr. Fenton] would testify for the applicant if legal action based on Fenton's allegations was pursued.

Opp. at 2. Apparently, Mr. Fenton's accusation against Ms. Doe was based on a derogatory statement about the applicant's sexual orientation that Ms. Doe allegedly made in Mr. Fenton's presence. See Pl.'s Facts ¶ 19. The applicant then filed a discrimination complaint against Ms. Doe, and the IRS Equal Employment Opportunity office and the Office of Special Counsel ("OSC") commenced an investigation into the matter. See id. ¶ 20. Mr. Fenton and other IRS employees were interviewed as part of this investigation. See id. ¶¶ 14, 24.

According to Ms. Doe, the other two IRS employees who were present when she allegedly made the derogatory remark failed to corroborate Mr. Fenton's story. See Pl.'s Facts ¶ 21. Nevertheless, "the OSC was prepared to recommend disciplinary action against [Ms. Doe] for the non-selection of the applicant." Opp. at 3. Thus, "in order to put a lengthy investigation to rest," Ms. Doe entered into a settlement agreement with the IRS and the OSC in or about July 2003. Pl.'s Facts ¶ 10. In that settlement agreement, Ms. Doe acknowledged that the reason she failed to hire the applicant was "not merit-based," Mot., Ex. 1, Settlement Agreement ¶ 1 ("Settlement Agreement"), and the parties agreed that Ms. Doe would be suspended without pay for 45 days, detailed to a non-management position for one year, and subject to other disciplinary measures. Id. ¶ 2. The parties also agreed to include a confidentiality provision in the Settlement Agreement. Specifically, the Settlement Agreement provided that [n]either OSC nor the [IRS] shall disclose the terms of [the Settlement Agreement] and/or the facts and issues relating to and/or addressed in [the OSC file relating to the investigation] to any person and/or entity, except as provided for in paragraph 8 [of the Settlement Agreement], and as otherwise required by law, upon request of a Congressional committee with jurisdiction over the matter, and as may be needed for any law enforcement purpose.

Id. ¶ 6. Paragraph 8 of the Settlement Agreement provided that

OSC shall issue a press release that does not contain [Ms. Doe's] name. Prior to issuing the press release, OSC will give [Ms. Doe] and her attorney and the [IRS] an opportunity to review the draft press release. OSC will consider their comments, but is under no obligation to negotiate over the content of the press release.

Id. ¶ 8.

The OSC issued its press release on June 20, 2003. See Mot., Ex. 2, Press Release, U.S. Office of Special Counsel, U.S. Office of Special Counsel Secures Corrective and Disciplinary Action in Case of Federal Job Applicant Denied Job Because of His Homosexuality (June 20, 2003) ("OSC Press Release"). (Ms. Doe does not argue that the OSC Press Release violated the Privacy Act or the Settlement Agreement. See Opp. at 4.) Soon thereafter, the Washington Post carried an article about the Settlement Agreement. See Mot., Ex. 3, Stephen Barr, In IRS Bias Case, Special Counsel Brings About Suspension and Settlement, WASHINGTON POST (June 26, 2003) ("Post Article"). The Post Article "did not reveal [Ms. Doe's] name or discuss details of the investigation beyond the facts in the OSC press release." Opp. at 4.

When Mr. Fenton learned of the Post Article, he wrote a lengthy e-mail to two of his superiors at the IRS, Peggy Carpenter and Rick Hynek. In that e-mail, Mr. Fenton wrote:

The information within the article seems to vindicate me in my struggles through the last three years within this organization. I think it plainly points to who was telling the truth and who was lying in this issue. For a brief moment I thought this would end the retaliation and ostracism I have suffered over the past few years from those in management at the highest levels of CISO. I told the truth, I did the right thing, but instead of being supported by my management I was shunned and ostracized. After thinking about it for a while I realized that nothing would probably change. My section and I will continue to be attacked by SD management with Mr. Hynek's blessing, and decisions will continue to be made that usurp any authority my organization holds as well as its purpose. CISO will continue to try to force me to resign my management position and Mr. Hynek will continue to support [Ms. Doe] at any expense. This organization is so corrupt that few see what is right and what is wrong any more. I doubt that any of the punishment outlined in this article will ever take place. With right and wrong so clearly defined by this article one has to ask how upper management can be so blind as to the right thing to do.... I will continue to do the right thing and I will do everything within my power to see that the true story behind these events is eventually told. Everyone who participated in this travesty needs to be identified and those who practiced retaliation need to be punished for their roles in this even if they do sit in the front office. Opp., Ex. 10, E-mail Message from Gerald Fenton to Peggy Carpenter and Rick Hynek (July 7, 2003 at 3:12 p.m.). In response, Ms. Carpenter wrote:

First of all, the terms of the agreement reached by the Office of Special Counsel which must be adhered to, state that the identity of those involved not be revealed so obviously Rick [Hynek] and I are adhering to those terms.

Secondly, an agreement reached by the Office of Special Counsel is binding to the agency and you can be assured that the terms discussed in the article will be adhered to including the suspension and removal from management for one year.

Thirdly, Rick and I are both troubled by the overall perception that you seem to have that you are being ostracized and that the authority of your section has been impacted in some negative way. We do not see that and feel we have made several good faith efforts to ensure that you and your staff are not being retaliated against in any way. Obviously you perceive this differently and it might be a good idea for the three of us to meet and understand your concerns.

Opp., Ex. 10, E-mail Message from Peggy Carpenter to Gerald Fenton and Rick Hynek (July 8, 2003 at 11:43 a.m.).

Approximately ten days after this e-mail exchange, the Washington Blade newspaper carried another article about the Settlement Agreement. See Mot., Ex. 5, Joe Crea, IRS Manager Suspended for "Queer" Epithet, WASHINGTON BLADE (July 18, 2003) ("Blade Article"). Unlike the Post Article, the Blade Article quoted Mr. Fenton at length. It also included (1) Ms. Doe's real name; (2) specifics as to what precisely Ms. Doe allegedly said about the applicant's sexual orientation; and (3) other information not included in the OSC Press Release. See Pl.'s Facts ¶ 47. Mr. Fenton denies that he "provide[d] information concerning [the] investigations or... disciplinary actions taken against plaintiff to [the Blade] or any other media, either directly or indirectly." Mot., Ex. 10, Declaration of Gerald M. Fenton ¶ 5 (May 16, 2008) ("Fenton Decl.").*fn2 He admits, however, that he shared his knowledge about the events underlying the OSC investigation with individuals inside and outside the IRS. See Opp., Ex. 9, Deposition of Gerald M. Fenton at 157-61, 184-88, 199-200 (Oct. 19, 2007) ("Fenton Dep.").

Ms. Doe claims that, upon learning of the Blade Article, she "literally fell apart emotionally[.]" Pl.'s Facts ¶ 65. She further claims that the disclosures in the Blade Article caused her to suffer injuries including "direct and indirect injury to [her] reputation," physical pain and suffering, mental anguish, damage to her career, and certain out-of-pocket pecuniary losses. Complaint ¶ 26. She therefore brought suit against the IRS, alleging that the agency violated the Privacy Act in three specific ways: when [Mr. Fenton] willfully and intentionally disclosed information regarding the plaintiff that is protected by the Privacy Act to a news reporter [at the Washington Blade] and others without plaintiff's consent [in violation of Section 552a(b) of the Privacy Act], and when the IRS failed to keep an accounting of its unauthorized disclosures as required by [Section 552a(c)]. [Moreover,] [p]rior to making the disclosure(s), [Mr. Fenton] did not assure the accuracy or completeness or relevance for agency purposes of the information that was disclosed as required by [Section 552a(e)(6)].

Opp. at 1.*fn3 The IRS argues that no violation of the Privacy Act occurred, see Mot. at 5-8, and that even if a violation occurred, Ms. Doe ...

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