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Agelli v. Burwell

United States District Court, District of Columbia

February 19, 2016

Maria Agelli, Plaintiff,
Sylvia M. Burwell, Secretary, U.S. Department of Health and Human Services, Defendant.


Amit P. Melita United States District Judge.


In November 2003, Plaintiff Maria Agelli entered into a confidential Memorandum of Understanding (MOU) with her employer, the National Institute of Health (NIH), to resolve an equal employment opportunity (EEO) complaint that she had filed. As part of the MOU, NIH agreed that it would expunge from her personnel records an unflattering performance review from 2003, which had prompted the EEO complaint. Fast forward nine years to October 2012. Plaintiff learned for this first time that NIH had not in fact destroyed the negative performance review as required by the MOU. Instead, NIH had preserved and circulated it among staff members. Believing that NIH’s actions violated not only the MOU, but also the Privacy Act, Plaintiff filed this suit in October 2014.

The primary question this case presents is whether Plaintiff timely filed her suit under the Privacy Act. The Act provides a two-year limitations period that commences when the plaintiff knows or should have known of the alleged violation. Here, the court concludes that Plaintiff knew or should have known about NIH’s failure to destroy the 2003 negative performance review more than two years before she filed suit. Accordingly, the court grants Defendant’s Motion for Summary Judgment and enters judgment in favor of Defendant.


A. Factual Background

1. Plaintiff’s 2003 EEO Complaint

Plaintiff Maria Agelli is a physician epidemiologist, employed as a Medical Officer at NIH’s National Cancer Institute (“Cancer Institute”). Compl., ECF No. 1, ¶ 15; Aff. of Dr. Maria Agelli, ECF No. 12-2 [hereinafter Agelli Aff.], ¶ 3. Plaintiff began working at NIH in 2001 as an employee of the Cancer Institute’s Cancer Training Branch. Agelli Aff. ¶ 4. In 2002, Dr. Carolyn Strete became Plaintiff’s supervisor. Id. ¶¶ 12-14. Conflicts quickly arose between Plaintiff and Dr. Strete. Id. ¶¶ 13-16.

The following year, in September 2003, Dr. Strete drafted a highly critical performance evaluation of Plaintiff in which Dr. Strete recommended that Plaintiff be transferred to another component of NIH (the “2003 Performance Review”). Id. ¶ 18; Def.’s Mot. to Dismiss or, in the Alter., for Summ. J. [hereinafter Def.’s Mot.], Ex. 1, ECF No. 7-2 [hereinafter MOU]. In response, Plaintiff filed an EEO complaint alleging that the 2003 Performance Review was the product of discrimination based on her sex and national origin. Agelli Aff. ¶ 22.

In November 2003, Plaintiff and NIH resolved her discrimination complaint by entering into a confidential Memorandum of Understanding (MOU). Id. ¶ 33. As part of the MOU, NIH agreed to assign Plaintiff to another component of NIH for one year. Def.’s Mot., Ex. 1 at 1. It also agreed that the Cancer Institute “will use the interim 2003 performance evaluation mutually agreed upon in the latest revision.” Id. And, most importantly for present purposes, NIH agreed that the Cancer Institute would not “retain any written record of negative comments in any personnel folder.” Id. In other words, NIH agreed to remove the 2003 Performance Review from Plaintiff’s personnel file.

2. NIH’s Treatment of the 2003 Performance Review

Move the calendar forward almost nine years to the fall of 2012. Plaintiff had filed a new EEO complaint, which was pending before the Equal Employment Opportunity Commission. Def.’s Mot., Ex. 3. On October 2, 2012, Plaintiff received documents from NIH relating to her new EEO complaint. Agelli Aff. ¶¶ 42, 45. Among those records was an email dated January 2005 from Dr. Strete to Dr. Ernie Hawk, who was “the newly appointed Officer Director” of the Cancer Institute (“Strete Email”). Id. ¶ 35. According to Plaintiff, the Strete Email was among thousands of pages NIH produced on October 2, 2012. Id. ¶¶ 42, 45.

The Strete Email evidenced a clear violation of the MOU. Attached to the Email was Plaintiff’s 2003 Performance Review, which NIH was supposed to have destroyed under the terms of the MOU. Def.’s Mot., Ex. 1. Moreover, the Email showed Dr. Strete sharing the 2003 Performance Evaluation with another NIH colleague, Dr. Hawk. In the text of the email, Dr. Strete wrote that her “comments [in the 2003 Performance Review] were significantly watered down by [another NIH official] and those went to [Plaintiff’s] official files. Therefore, I assume these”-meaning the 2003 Performance Review comments-“are dead. I am only sending these to you so that you can see her through my eyes. Obviously this is confidential.” Id. at 1.

The precise date on which Plaintiff actually saw the Strete Email, and learned of NIH’s violation of the MOU, is in dispute. Following her discovery of the Strete Email, Plaintiff wrote two letters to Debra Chew, the Director of NIH’s EEO office. In the first letter, dated October 11, 2012 (“October ...

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