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Tolbert-Smith v. Chu

May 26, 2010


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Plaintiff, Marilyn Tolbert-Smith, an employee in the Legacy Management branch ("LM") of the United States Department of Energy, brings claims under the Rehabilitation Act, Title VII of the Civil Rights Act of 1964, and the Privacy Act against the Secretary of the Department of Energy,*fn1 alleging discrimination, hostile work environment, and improper disclosure of information regarding her medical condition. The Secretary has filed a motion for partial judgment on the pleadings or, in the alternative, for summary judgment, arguing that Tolbert-Smith's claims are time-barred, and that there is no genuine issue of material fact with respect to plaintiff's Privacy Act claims. Because Tolbert-Smith timely filed her Equal Employment Opportunity Commission ("EEOC") complaint and her district court complaint, the Secretary's motion, treated as a motion for summary judgment, will be denied with respect to the timeliness issue. Further, because Tolbert-Smith has stated a claim for relief but has not had a reasonable opportunity to contest matters outside the pleadings on her Privacy Act claim, the Secretary's motion with respect to that issue will be denied without prejudice to the parties filing supplemental memoranda that address the Privacy Act claim.


Tolbert-Smith has been employed by the Department of Energy since 1991 and as a program analyst in LM since that branch's inception in December 2003. (Second Am. Compl. ¶ 23.*fn2 ) Terrance Brennan, a team leader in LM, originally supervised Tolbert-Smith. (Id. ¶ 25.) Throughout Tolbert-Smith's employment with LM, she has suffered from clinical depression. (Id. ¶¶ 31-36.) Tolbert-Smith alleges that in November 2004, Brennan contacted her treating physician without her consent to request information about her illness and medical treatment. (Id. ¶ 46.) Tolbert-Smith also alleges that members of LM management made disparaging remarks about her illness. (Id. ¶ 47.) On August 31, 2005, Tolbert-Smith contacted the Department's Office of Civil Rights ("OCR"), alleging discrimination and requesting counseling. (Id. ¶¶ 9, 61.) Tolbert-Smith participated in the requisite EEO counseling process, retained counsel, and notified OCR and the agency that she had obtained representation. (Id. ¶¶ 68, 97.) Several months after Tolbert-Smith sought counseling, members of LM management placed confidential information regarding her illness on a server accessible by all federal employees and outside contractors. (Id. ¶¶ 72-75.)

On January 25, 2006, Tolbert-Smith received a "Notice of Final Interview with EEO Counselor and Right to File a Formal Complaint" from OCR. (Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. for Partial J. ("Pl.'s Mem."), Ex. 2, Polydor Decl. ¶ 6.*fn3

Following receipt, Tolbert-Smith contacted her attorney, Cheryl Polydor, and informed her of the Notice. (Id.) Polydor received a copy of that notice from the Department in the mail on February 22, 2006. (Id. ¶ 7.) The notice stated that 29 C.F.R. § 1614.105(d) required Tolbert-Smith to file any formal complaint within fifteen days of receipt of the notice. (Pl.'s Stmt. of Genuine Issues ("Pl.'s Stmt.") ¶ 3.) Tolbert-Smith alleges that she filed a formal administrative complaint on February 9, 2006.

(Pl.'s Mem., Ex. 2, Polydor Decl. ¶ 8.) She claims that, on that day, Polydor addressed an envelope containing the notice by gluing an address label onto the front of the envelope and placed it in the mail. (Id. ¶¶ 8-9.) Eight days later, the envelope was returned to Polydor for failure to attach an address, as the glued-on label had become detached. (Id. ¶¶ 10-11.) Upon return of the envelope, Polydor procured a new envelope, on which she typed the intended address. She mailed the envelope on February 17, 2006, the date OCR credited as the filing date. (Id. ¶ 12.) On March 30, 2006, Polydor received an email informing her that OCR had determined that the administrative complaint was untimely and would be dismissed as a result. (Id. ¶ 13.) Tolbert-Smith received an official notice of dismissal on April 3, 2006. (Second Am. Compl. ¶ 19.)

Polydor asserts that she traveled to this courthouse on the night of July 3, 2006 to place Tolbert-Smith's district court complaint in the drop box for after-hours filing. (Pl.'s Mem., Ex. 2, Polydor Decl. ¶ 19.) When she arrived, she noticed that the three time-clocks for stamping filings ---- one for the U.S. District Court, one for the U.S. Bankruptcy Court, and one for the U.S. Court of Appeals ---- displayed different times and dates. (Id. ¶ 24.) The bankruptcy and circuit clocks displayed dates of "June 34" and "July 33," respectively (id. ¶ 25), and the machines stamped these dates on an extra copy of Tolbert-Smith's complaint. (Id., Ex. 2, Polydor Decl. ¶ 27; Ex. 5 at 1.) The bankruptcy stamp also reflects a time of "P 11:59." (Id., Ex. 5 at 1.) Polydor did not stamp the copy of the complaint with the district court machine. (See id.) The Court was closed the next day for the July 4th holiday, and the Clerk docketed the complaint on July 5, 2006. (Pl.'s Mem., Ex. 2, Polydor Decl. ¶¶ 28, 29.) Two of the three summonses that the Clerk's Office issued reflected a July 5, 2006 filing date, but the summons to the Attorney General contained two different date stamps ---- one for July 3, 2006, and one for July 5, 2006. (Id., Ex. 2, Polydor Decl. ¶ 31; Ex. 6.)

The Secretary has moved for partial judgment on the pleadings or, in the alternative, summary judgment, arguing that Tolbert-Smith failed to exhaust her administrative remedies because she did not timely file her EEOC complaint or her district court complaint, and that she has failed to demonstrate that the Secretary willfully or intentionally disclosed any documents from its records. Tolbert-Smith opposes, arguing that both her EEOC and district court complaints were timely filed, and that she has established willful and intentional violations of the Privacy Act.


A party may move for judgment on the pleadings "[a]fter the pleadings are closed ---- but early enough not to delay trial[.]"

Fed. R. Civ. P. 12(c). Such a motion is granted if there are no material facts in dispute and the movant is entitled to judgment as a matter of law. Stewart v. Evans, 275 F.3d 1126, 1132 (D.C. Cir. 2002). "In considering a motion for judgment on the pleadings, the Court should 'accept as true the allegations in the opponent's pleadings' and 'accord the benefit of all reasonable inferences to the non-moving party.'" Id. (quoting Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987)).

When "matters outside the pleadings are presented to and not excluded by the court" on a Rule 12(c) motion, "the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). A motion may be treated as one for summary judgment even if the parties have not been provided with notice or an opportunity for discovery if they have had a reasonable opportunity to contest the matters outside the pleadings such that they are not taken by surprise. See Highland Renovation Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C. 2009). Summary judgment may be granted when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, a court is to draw all justifiable inferences from the evidence in favor of the non-movant. Cruz- Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The relevant inquiry "is the threshold inquiry of determining whether there is the need for a trial ---- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they ...

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