Opinion
Civil Action No. 02-942.
April 23, 2004
Memorandum
I. Introduction
Plaintiff Mark Bailey, Sr. ("Plaintiff") is a former employee of the Department of Veterans Affairs (the "Department"). He was employed as a pipefitter at the Department's Medical Center in Coatesville, Pennsylvania.
In his original Complaint, Plaintiff sued the Secretary of the Department ("Defendant") seeking review of a Merit Systems Protection Board ("MSPB") decision denying his request to be reinstated to his former position. Plaintiff alleged that Defendant acted improperly by firing him in retaliation for being a whistle blower and for activities he undertook as union president (Count I), and that Defendant violated his rights under Title VII, 42 U.S.C. § 2000(e), the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, the Rehabilitation Act, 29 U.S.C. § 791 (presumably alleged as part of Count II), and the Privacy Act, 5 U.S.C. § 552a (Count III). On a Motion to Dismiss and a Motion for Partial Summary Judgment, the Court, on April 30, 2003, entered summary judgment on Plaintiff's non-discrimination claims alleged in Count I, and dismissed Plaintiff's ADEA and Rehabilitation Act claims alleged in Count II. The Court also dismissed Plaintiff's Privacy Act claim without prejudice and with leave to amend his Complaint, which Plaintiff did on May 15, 2003.
For a more complete discussion, see Bailey v. Principi, No. CIV.A.02-942, 2003 WL 21027250, at *16 (E.D. Pa. April 30, 2003).
Subsequent to the filing by Plaintiff of an Amended Complaint, Defendant moved for summary judgment on Plaintiff's Title VII claims. Then, following the filing of Plaintiff's Amended Complaint, Defendant moved the Court to dismiss Plaintiff's claims under the Privacy Act. In a Memorandum and Order, dated August 20, 2003, the Court granted Defendant's Motion for Summary Judgment, thereby dismissing Plaintiff's Title VII claims, and denied Plaintiff's Motion to Dismiss, holding that he sufficiently pleaded a cause of action under the Privacy Act and was entitled to conduct discovery and present evidence in support of his claims. Hence, following the August 20, 2003 Memorandum and Order only Count III of Plaintiff's Amended Complaint remained.
For a more complete discussion, see Bailey v. Principi, No. 02-942, 2003 U.S. Dist. LEXIS 15538 (E.D. Pa. Aug. 20, 2003).
Presently, before the Court is Defendant's Motion for Summary Judgment, filed on November 17, 2003, requesting that the Court grant summary judgment on Plaintiff's Privacy Act claims. Plaintiff responded to this motion on December 15, 2003 by requesting that the Court deny Defendant's motion as premature because discovery was no yet complete. In response, the Court entered an Order granting Plaintiff until March 6, 2004 to file a response to Defendant's motion. Thereafter, Plaintiff filed its response on March 22, 2004 along with a motion for leave to file untimely, which the Court granted. Defendant filed a reply brief on March 31, 2004.
Defendant's Motion for Summary Judgment claims that Plaintiff has conducted no discovery in support of his claims, and, as such, cannot demonstrate the existence of any genuine issues of material fact sufficient to defeat a motion for summary judgment.
Defendant's motion will be granted.
II. Facts
The undisputed facts in this case are set forth completely in the Court's previous opinion dated August 20, 2003, and are incorporated by reference. See Bailey, Supra, fn. 2. The following is a summary based upon the Court's findings in that opinion.
Plaintiff was employed at the Department for 21 years prior to September 9, 1998, when he was terminated based on charges of sexual misconduct for engaging in sexual advances, unwanted touching and offensive language of a sexual nature aimed at two female Department employees. Id. at *5.
Defendant was first alerted to the possibility of Defendant's misconduct on June 19, 1996. Id. On that date, Marsha George, a Personnel Staffing Assistant for Defendant, told her supervisor, George Pearson, Chief, Human Resources Management Services, that her sister, Michele Farra, a medical clerk at Defendant's facility, had been sexually harassed by Plaintiff. Id. Mr. Pearson then met with Ms. Farra on June 21, 1996 to discuss these allegations. Id. At the meeting, Ms. Farra provided a description of Plaintiff's conduct, but indicated that she did not want to file a complaint. Id. at *5-6. Nonetheless, Mr. Pearson contacted others in order to convene an investigation into Plaintiff's interactions with Ms. Farra. Id. at *6. Thereafter, on June 24, 1996, Steve Dizel, Acting Associate Medical Center Director, and Sue Scott, Acting Chief for Human Resource Management Services, interviewed Ms. Farra about the allegations she made regarding Plaintiff. Id. However, Ms. Farra again indicated that she did not wish to pursue the matter. Nonetheless, Mr. Dizel and Ms. Scott informed her that the charges were very serious and that the agency was obligated to investigate them. Id. Thereafter, the Department advised Plaintiff that allegations of sexual harassment had been made against him and ordered him to have no contact with Ms. Farra. Id.
As the investigation into the alleged sexual harassment got underway, Ronald Pitcherella, Chief of Pharmacy Service, learned of the allegations against Plaintiff. Id. at *7. This lead Mr. Pitcherella to meet with his Secretary, Christina March, because she had previously complained about how Plaintiff had treated her. Id. At this meeting, Ms. March provided Mr. Pitcherella with a description of Plaintiff's conduct, which Mr. Pitcherella passed on to Mr. Pearson. Id.
Thereafter, Defendant convened an Administrative Board of Investigation ("ABI") to investigate the situation and interview witnesses. Id. Following its investigation, the ABI ultimately determined that the charges against Plaintiff were credible and met the definition of sexual harassment.
This investigation is the focal point of this motion for Summary Judgment. Plaintiff argues that the ABI's investigation was conducted in such a manner that it violated the Privacy Act. However, Plaintiff has presented almost no facts, at this stage of the proceedings, to substantiate this claim. The non-factual allegations in Plaintiff's Amended Complaint state that the ABI investigated the charges against him very broadly by questioning many women who had not previously complained about Plaintiff's conduct. Id. at * 29 (discussing ¶¶ 20-23, 25 and 27 of Plaintiff's Amended Complaint). Overall, Plaintiff alleges that ten women, all white, were questioned during the initial two-day stage of the investigation. Id. (discussing ¶¶ 20, 24 and 26 of Plaintiff's Amended Complaint). These women were allegedly asked intrusive and offensive questions regarding whether or not they had ever engaged in sexual relations with Plaintiff. Id. (discussing ¶ 23 of Plaintiff's Amended Complaint). Plaintiff allegedly was not questioned until the third day of the investigation, after Defendant had first questioned the women. Id. The alleged result of this investigation subjected Plaintiff to rumor, innuendo, embarrassment and ridicule. Id. (discussing ¶ 30 of Plaintiff's Amended Complaint). Plaintiff additionally alleges that Defendant's conduct was willful, intentional and racially motivated. Id. (discussing ¶¶ 29 and 30-31).
Because Plaintiff has presented almost no evidence, at this stage, to substantiate these claims, and in particular has presented no evidence to rebut Defendant's evidence that a violation of the Privacy Act did not occur (discussed below), the Court must grant Defendant's motion for summary judgment and dismiss Count III of Plaintiff's Amended Complaint.
III. Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
IV. Discussion
The Privacy Act regulates the collection, maintenance, use, and dissemination of information about individuals. 5 U.S.C. § 552a. As discussed in the Court's previous opinions, the provision of the Privacy Act implicated by Plaintiff requires that a governmental department maintaining a system of records "collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under federal programs." § 552a(e)(2). This provision reflects "congressional judgment that the best way to ensure accuracy, in general, is to obtain information `directly from the individual whenever practicable.'" Waters v. Thornburgh, supra, fn. 3 at 873. An individual may bring a civil action against any agency that fails to comply with the Act as long as this failure has an adverse impact on the individual. § 552a(g)(1)(D). It provides for a civil remedy that includes damages, reasonable attorney fees, and other litigation costs. § 552a(g)(4).
The Second Circuit has cast doubt as to whether section 552a(e)(2) even applies to the federal employment relationship as courts considering section 552a(e)(2) have never directly addressed the facial applicability of the section to the federal em ployment context. See Carton v. Reno, 310 F.3d 108, 111 (2d Cir. 2002). However, both the Sixth Circuit and the D.C. Circuit have applied the Privacy Act in the federal employment context, but questions about the facial applicability of the Act to the employment context never arose. See Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001) (analyzing the Defense Department's investigation of an employee's management performance at a military base school system); Waters v. Thornburgh, 888 F.2d 870, 873 (D.C. Cir. 1989) (considering appropriateness of a Justice Department investigation into an employee's use of leave days). However, because the present matter can be disposed of on other grounds, the Court will not address section 552a(e)(2)'s applicability to the present matter.
To state a claim under section 552a(e)(2), a plaintiff must allege that a defendant failed to elicit information from the plaintiff "to the greatest extent practicable," and the defendant's violation had an adverse impact on him. See Hudson v. Reno, 130 F.3d 1193, 1204-05 (6th Cir. 1997), cert. denied, 525 U.S. 822, 119 S.Ct. 64, 142 L.Ed.2d 50 (1998),overruled in part on other grounds, Pollard v. E.I. du Pont de Nemours Co., 532 U.S. 843, 121 S.Ct. 1946, 150 L.Ed.2d 62 (2001); see also Darst v. Social Security Administration, 172 F.3d 1065, 1068 (8th Cir. 1999). Allegations of mental distress or embarrassment are sufficient to meet the adverse effect requirement. See Quinn v. Stone, 978 F.2d 126, 135 (3d Cir. 1992); Albright v. United States, 732 F.2d 181, 186 (D.C. Cir. 1984). Additionally, in order to recover damages under the Privacy Act, the plaintiff must allege that the agency "acted in a manner that was intentional or willful." 5 U.S.C. § 552a(g)(4);Britt v. Naval Investigative Serv., 886 F.2d 544, 551 (3d Cir. 1989).
Relying on cases interpreting section 552a(e)(2), Defendant maintains that Plaintiff cannot create a triable issue of material fact as to whether or not the ABI's investigation violated the Privacy Act. In so doing, Defendant concedes the relevant allegations raised in Plaintiff's complaint. Defendant admits that it did not question Plaintiff before questioning third parties. (Pl's Mot. for S.J. at 6.) Instead, Defendant conducted a three day investigation, during which time it questioned ten third parties before finally questioning Plaintiff on the third and final day of the investigation. (Id.) However, Defendant argues that, as a matter of law, these facts do not establish that the Department did not "collect information to the greatest extent practicable directly from [Plaintiff]," or that, in conducting its investigation, the Department acted in a manner that was "intentional and willful."
The Court agrees with Defendant. Although the Third Circuit and no court in this District have addressed how section 552a(e)(2) should be interpreted, precedent from other jurisdictions have convincingly held that "collecting information to the greatest extent practicable directly from the subject individual" does not require an agency to first question the subject individual before questioning any one else. To the contrary, questioning the subject individual first, especially in a disciplinary investigation, would often be counterproductive.
The Second Circuit in Carton v. Reno, supra, fn. 3, held that an agency's failure to first confront a subject individual could be viewed as practicable under certain circumstances. In that case, the United States Immigration and Naturalization Service (the "INS") instituted an investigation regarding the overhanded tactics of the plaintiff, who the INS employed as an investigator. Rather than first question the plaintiff, the INS instead questioned third parties. Id. at 109. The Second Circuit found this order of questioning to be practicably reasonable, and upheld the lower court's entry of summary judgment, for the following reasons: (1) there was no reason to expect that information of a greater extent could have been collected from the plaintiff if he had been interviewed first rather than last. In fact, the court held that interviewing third parties first could actually sharpen the agency's focus, allowing it to question the plaintiff in a manner in which he would have to respond with more particularity. This, the court reasoned, would serve both the Plaintiff's interests and the interests of the agency; and (2) the court held that the allegations made against the plaintiff were incapable of being resolved by his say-so or by some documentation he might be expected to have. Simply put, the plaintiff's "denial would not obviate the need to investigate [the allegations against him]." Id. at 112.
A similar result was reached by the Sixth Circuit in Cardamone v. Cohen, supra fn. 3. There the court focused more on the plaintiff's ability to threaten and coerce third parties, in holding that the Privacy Act does not require an agency to first question the subject individual. In so holding, the court held that "the specific nature of each case shapes the practical considerations at stake that determine whether an agency has fulfilled it obligation under the Privacy Act to elicit information directly from the subject of [an] investigation to the greatest extent practicable." Id. at 528.
This sentiment was echoed by the D.C. Circuit, which held that "the relevant inquiry under section [552a(e)(2)] concerns, as it must, the reasonableness of the investigator's decision to contact a third party viewed at the time [the decision] was made, with all uncertainties attendant upon an investigation at its initial stages." Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988). With this in mind, the D.C. Circuit, in Brune, weighed the practical considerations at stake and upheld the lower court's entry of summary judgment on the basis that where a person stands accused of making false statements, it is unlikely that he will provide a sufficiently adequate explanation of his conduct, thereby justifying the agency's decision to question third parties before the subject individual. Id. at 1287.
In the present matter, Defendant has presented the Court with the affidavit of William C. Hucker, Chairman of the ABI, which investigated the complaints of sexual harassment made against Plaintiff. In his affidavit, Mr. Hucker indicates that prior to the ABI's investigation the Department's Director and others briefed the ABI regarding the complaints that had been filed regarding Plaintiff's conduct. (Hucker aff. ¶ 8.) Following this briefing, the ABI determined that simply speaking with plaintiff would not resolve the matter because "his denial of the allegations would not result in dismissal of the complaints." (Id. ¶ 9.) Rather, the ABI determined that it needed to "speak with the complainants, people who were witnesses or could corroborate the alleged sexual harassment in some manner [and] other people whose names surfaced in connection with sexual harassing behavior by [Plaintiff]." (Id.) Furthermore, Mr. Hucker stated, in his affidavit, that Plaintiff "could not be expected, as the suspect of improper behavior, to be a reliable source concerning what he did, and how it was perceived by the women with whom he was interacting." (Id. ¶ 10.) Thus, the ABI decided to first collect information from third parties in order to allow Plaintiff the opportunity to "respond to all allegations against him" at once. (Id. ¶ 11 (emphasis in original).) Mr. Hucker further explained that if the ABI questioned Plaintiff first, then any time a new allegation against Plaintiff arose the ABI would have to recall Plaintiff for further questioning. (Id.) Additionally, Mr. Hucker's affidavit claims that this order of proceedings was reinforced by Plaintiff's initial denial of sexual harassment when confronted by management. (Id. ¶ 15.)
Plaintiff's meager two page response does not refute the assertions contained in Mr. Hucker's affidavit, thereby allowing the Court to treat these assertions as statements of uncontested fact. Instead, Plaintiff's response merely reasserts his contention that Defendant violated his rights by not questioning him before Defendant questioned third parties. However, as established by precedent, section 552a(e)(2) does not per se require an agency to first question the subject individual before third parties in the process of "collect[ing] information to the greatest extent practicable directly from the subject individual." Instead, precedent establishes that a Court must "weigh the practical considerations at stake" and determine whether or not the agency possessed a viable reason for first questioning third parties rather than the subject individual.
Mr. Hucker's affidavit in this case presents a clear justification for not first questioning Plaintiff. One, it was unlikely that Plaintiff's response would obviate the need to conduct an investigation, especially given his initial denial of responsibility. Additionally, because allegations of sexual harassment deal with issues of perception, it is unlikely that Plaintiff's sayso alone can shut down an investigation. Two, by questioning third parties first, Defendant was able to collect all the available, pertinent information and focus its questions so that Plaintiff could answer them all at once and with greater particularity. This closely parallels the reasoning provided by the Second Circuit in Carton. Thus, based on the precedent discussed above and Mr. Hucker's uncontested affidavit, the Court holds that Defendant's Motion for Summary Judgment will be granted, as the uncontested practical considerations make it abundantly clear that Defendant had no obligation to interview Plaintiff before interviewing third parties.
Because this case has been resolved on the basis that Defendant was not obligated to first question Plaintiff before third parties in the process of collecting "information to the greatest extent practicable directly from" Plaintiff, it need not reach the issue of whether or not Defendant's misconduct was "intentional or wilful," as Defendant engaged in no misconduct.
This holding does not conflict with the holding of Waters v. Thornburgh, supra, fn. 3, wherein the D.C. Circuit reached the opposite conclusion reached by the Court in this case. In Waters, the D.C. Circuit reviewed the Department of Justice's ("DOJ") investigation into whether or not one of its employee's was abusing his annual leave time by claiming to be taking the Pennsylvania Bar Exam when, in fact, he was not. Rather than confront its employee directly, the DOJ instead contacted the Pennsylvania Board of Bar Examiners. Because the DOJ did not first question its employee, the D.C. Circuit to reversed the lower court's entry of summary judgment on the employee's Privacy Act claims. However, in doing so the court explicitly stated that its decision in no way conflicted with its prior decision inBrune, which permitted an agency to question third parties prior to the subject individual due to the special nature of the investigation — namely that an IRS agent was accused of making false statements and occupied a position of power from which he possessed the ability to coerce witnesses. Waters, 888 F.2d at 874. In Waters, those considerations were not present, and the Court placed special emphasis on the fact that the DOJ could have sought objective evidence from its employee, such as "written correspondence informing him of his bar results [or] his bar exam admittance ticket." Id. Such evidence cannot lie. Hence, inWaters, the practical considerations were such that the employee's say-so, through the presentation of objective evidence, could have effectively halted the DOJ's investigation. This differs significantly from the present cause of action in which the record contains no evidence of objective evidence that Plaintiff could have presented to effectively halt the investigation. As noted above, Mr. Hucker's uncontroverted assertions clearly state that Plaintiff's say-so, on its own, could not have halted the investigation.
Finally, Plaintiff presents one additional challenge to Defendant's motion for summary judgment, arguing that Defendant violated its own policy regarding investigations by conducting a "fishing expedition" not aimed at discovering facts specific to the incident being investigated. However, this argument appears to the Court to be unrelated to Plaintiff's claims under the Privacy Act, and, therefore, unpersuasive.
In making this argument, Plaintiff draws the Court's attention to what he has characterized as the Department's policy concerning administrative investigations. In doing so, Plaintiff claims that Defendant violated the following provision of the policy:
It is of prime importance that during any type of investigation the Board [of Investigation] or the Investigating Official remain focused on obtaining facts specific to the incident being investigated. Extraneous questions not related to the situation being investigated should not be asked.
(Pl's Resp. to Def. Mot. for S.J. Ex. A. ¶ 4(a)(1) (Emphasis in original).)
As evidence that Defendant violated this policy, Plaintiff attaches the transcript of Donna Regner's questioning by the ABI. However, the Court fails to see how this gets Plaintiff past summary judgment. First, nowhere in the Department's policy does it state that, in carrying out its investigation, Defendant was obligated to first question Plaintiff before questioning third parties. Even if it did, the Court does not perceive how the Department's internal policies are relevant to its duties and obligations under the Privacy Act. Second, the questions posed to Ms. Regner all appear to be centered around her relationship with Plaintiff and whether or not he had engaged in any sexually harassing conduct towards her. In any case, even if the ABI engaged in an overly broad line of questioning, the Court has already held that such a line of questioning is immaterial to a Privacy Act claim. Bailey, supra, fn. 2, at *33 n. 9.
Notably, in attaching this transcript, Plaintiff does not even attempt to explain to the Court how it is relevant to Plaintiff's argument.
Similarly immaterial are Plaintiff's allegation that only white women were questioned, as such an allegation has no relevance to the primary issue in this case — whether or not the Defendant violated the Privacy Act by not collecting "information to the greatest extent practicable directly from" Plaintiff.
It is now too late in the proceedings for the Plaintiff to switch gears and argue that Defendant violated its own policies in conducting its investigation. Such an allegation would have to have been pled in the complaint. Since Plaintiff pleaded no such allegation, the Court can only consider Plaintiff's Privacy Act claims, for which the Court holds there are no genuine issues of material fact outstanding that would permit a reasonable jury to return a verdict in favor of Plaintiff.
V. Conclusion
Based on the foregoing, the Court holds that Plaintiff has failed to demonstrate a triable issue of material fact that would allow a jury to reasonably return a verdict that the Defendant's investigation violated the Privacy Act. Mr. Hucker's uncontested affidavit convincingly establishes that the practical considerations in this case justified Defendant's decision to question third parties before questioning Plaintiff. Plaintiff presents no viable argument in opposition. As such, the Court will enter summary judgment on Count III of Plaintiff's Amended Complaint and judgment will be entered in Defendant's favor.
An appropriate Order follows.
ORDER
AND NOW THIS ____ day of April, 2004, upon consideration of Defendant's Motion for Summary Judgment, it is hereby ORDERED that Defendant's Motion is GRANTED and summary judgment is entered on Count III of Plaintiff's Amended Complaint.Judgment is entered in favor of Defendant and against Plaintiff.