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Public Employees for Environmental Responsibility v. U.S. Enovirmental Protection Agency

United States District Court, District of Columbia

February 26, 2013

PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, et al., Plaintiffs,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant.

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Kathryn Douglass, Public Employees for Environmental Responsibility, Washington, DC, for Plaintiffs.

Alan R. Burch, U.S. Attorney's Office, Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, District Judge.

Dr. Richard David Hammer is a former employee of the United States Environmental Protection Agency. While working for EPA in Corvallis, Oregon, he filed a workplace complaint of harassment that was investigated by an outside contractor, Dr. Peter Maida. Dr. Hammer's efforts to obtain a copy of Dr. Maida's report were unsuccessful. Public Employees for Environmental Responsibility (PEER) filed a Freedom of Information Act request for the same report and was similarly unsuccessful. PEER and Dr. Hammer now sue EPA to obtain the report or at least the segregable findings of fact in it. The parties have filed cross-motions for summary judgment. Having reviewed the report ex parte and in camera, the Court will grant in part and deny in part the parties' cross-motions for summary judgment.

I. FACTS

Dr. Hammer joined EPA in 2007 as a Supervisory Life Scientist at the EPA's Western Ecology Division (WED) in Corvallis, Oregon. His immediate supervisor was Dr. Thomas Fontaine, and his second-line supervisor was Dr. Steven Hedtke. Dr. Hammer asserts that he encountered problems at WED that created a hostile working environment and other difficulties. Decl. Amy Battaglia, Def. Motion for Summary Judgment (" Def. MSJ" ) Ex., Att. P [Dkt. 5-1] (Oct. 1, 2009 Letter from Dr. Hammer to Dr. Hedtke (" 10/1/09 Letter" )) at 1. When he sought reassignment because of " an untenable management situation which is negatively affecting my health," id., EPA hired Dr. Peter Maida, a contractor, to conduct a fact-finding investigation into the complaints, Battaglia Decl. ¶ 4. [1] Dr. Maida investigated and provided a report on his investigation to Dr. Hedtke. Id.

As of December 2009, Dr. Hammer held the position of Branch Chief of Ecosystem Effects Branch. 10/1/09 Letter at 1. By

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memo dated December 18, 2009, when Dr. Hammer was on leave status because of an unspecified medical issue, Dr. Hedtke reported to him:

I have received and reviewed the results of the fact finding conducted in Corvallis. I did not find a definitive support for a hostile work environment, in terms of how that is defined under EEOC [2] guidelines. However, there was evidence of definite communication and management style differences which have lead [sic] to a breakdown of effective communication.

Pl. MSJ, Att. 1 [Dkt. 6-1] (Dec. 18, 2009 Letter from Dr. Steve Hedtke to Dr. Hammer (" 12/18/09 Letter" )) at 1. Dr. Hedtke told Dr. Hammer that he was considering " such options as mediation, training, coaching and job reassignment." Id. at 4. It is Dr. Maida's report (Maida Report), summarized very briefly by Dr. Hedtke in the 12/18/09 Letter, that Dr. Hammer sought and that is the object of PEER's request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

During his employment with EPA, Dr. Hammer submitted two FOIA requests and one request under the Privacy Act (" PA" ), 5 U.S.C. § 552a, for a copy of Dr. Maida's contract, the Maida Report, and " [a]ll emails between Peter Maida and EPA that pertain to [Dr. Hammer] in any way." Battaglia Decl. ¶¶ 7-8. EPA released the contract and payment records related to its contract with Dr. Maida; it withheld the Maida Report under FOIA Exemption 5 (deliberative process). Id. ¶ 13. EPA reported that there were no emails between EPA and Dr. Maida. Id. ¶ 16. Dr. Hammer appealed only the denial of release of the Maida Report, but that decision was affirmed by EPA's Office of General Counsel (" OGC" ). Id. ¶¶ 14-15; see also id. Att. F (Sept. 8, 2011 Letter from EPA denying appeal). In response to his PA request for the Maida Report and all supporting materials, EPA responded that the Maida Report was not maintained in a system of records and was, therefore, not subject to the Privacy Act. Id. ¶¶ 17-19. Dr. Hammer did not appeal the denial of his PA request. Id. ¶ 19.

Dr. Hammer filed an Equal Employment Opportunity complaint with the EPA Office of Civil Rights on June 1, 2011, alleging employment discrimination based on mental disability, harassment, failure to accommodate, and retaliation. Id. ¶ 5. After his discharge from EPA on November 3, 2011, Dr. Hammer filed a complaint with the Merit Systems and Protection Board (" MSPB" ), alleging that his discharge lacked just cause. Id. Both complaints were settled by EPA and Dr. Hammer on January 31, 2012. Id. ¶ 6; see also Battaglia Decl., Att. A [Dkt. 5-1] (" Settlement Agmt." ). By the terms of the settlement, Dr. Hammer withdrew with prejudice all appeals, complaints, grievances, claims, or civil actions against EPA " concerning any incidents, personnel actions, Agency decisions or determinations, or terms or conditions of employment" prior to January 31, 2012. Settlement Agmt. ¶ 4. He released EPA and its employees and agents from all liability for " any acts, omissions, allegations, claims or charges occurring prior to" January 31, 2012. Id. ¶ 5. Dr. Hammer also agreed not to file " any new appeal, complaint, grievance, claim, or civil action" against EPA " concerning any incidents, personnel actions, Agency decisions or determinations, or terms or conditions of employment" prior to January 31, 2012. Id. ¶ 6. In return, EPA cancelled Dr. Hammer's discharge and recorded that Dr. Hammer had resigned. Id. ¶ 9. It also

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removed all references to his termination and all disciplinary actions underlying it from his Official Personnel File. Id. ¶¶ 10-11. Although the settlement was to be confidential, id. ¶ 13, the parties have agreed it can be, and has been, filed with the Court. Dr. Hammer was represented by counsel in pursuing his FOIA/PA rights administratively and in negotiating the settlement agreement.

Plaintiff PEER, a non-profit organization that works on behalf of EPA employees, submitted a FOIA and PA request to EPA on December 19, 2011, requesting the Maida Report and any supporting materials. Battaglia Decl. ¶ 21. EPA numbered the request HQ-FOI-00485-12 and acknowledged its receipt by letter dated January 4, 2012. Id. ¶ 22. EPA denied PEER's FOIA request on February 14, 2012, stating that the Maida Report was an internal briefing document for decision-making purposes and contained personal information of EPA employees and was exempt from disclosure under FOIA Exemptions 5, 6 and 7(c). Id. PEER appealed on March 5, 2012, and OGC denied the appeal on May 2, 2012. Id. ¶ 23. OGC informed PEER that the Maida Report " reflects internal discussions and recommendations that were considered during EPA's decision-making process" and contained " personnel ... medical files, and similar files" relating to individuals other than Dr. Hammer and was, therefore, exempt from disclosure under the exemptions already stated. Id. ¶¶ 24-25. The OGC also stated that there was no reasonably segregable information that could be released. Id. ¶ 26.

This lawsuit promptly followed on May 10, 2012. PEER states that it filed its FOIA/PA request in its own right and on Dr. Hammer's behalf, as its letter had indicated. Mem. Supp. Pl. MSJ (" Pl. MSJ Mem." ) [Dkt. 6] at 27-28; see also Battaglia Decl., Att. L [Dkt. 5-1] (Dec. 19, 2011 Letter from PEER to EPA (" 12/19/11 Letter" )). The only document at issue here is the Maida Report itself. PEER does not contest EPA's statement that the agency conducted a reasonable search for records and could not find any ...


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