Powell v. Potter
Filing
29
ORDER granting 17 Motion for Summary Judgment; denying 26 Motion for Extension of Time to Complete Discovery. Clerk to close case. Signed by Hon. Michael A. Telesca on 4/6/2012. (BMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
CHRISTOPHER POWELL,
Plaintiff,
10-CV-6475T
DECISION
and ORDER
v.
JOHN E. POTTER, Postmaster General,
United States Postal Service
Defendant.
________________________________________
INTRODUCTION
Plaintiff Christopher Powell (“Powell”) brings this action
against defendant John E. Potter, Postmaster General of the United
States Postal Service (“Postal Service”), claiming that his rights
were violated when an attorney representing the Postal Service
allegedly
gained
unauthorized
access
to
his
medical
files.
Specifically, plaintiff claims that an attorney for the Postal
Service obtained and disseminated his confidential medical records
without his authorization in connection with a discrimination
complaint filed against the Postal Service by the plaintiff.
Powell contends that the unauthorized disclosure of medical records
constitutes a violation of his rights under the Privacy Act,
codified at 5 U.S.C. § 552(a).
Plaintiff further alleges that the
unauthorized disclosure of his medical records was intentional
retaliation for his having complained of employment discrimination,
in violation of the anti-retaliation provisions of Title VII of the
Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et. seq.,
and the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et.
seq.
Defendant moves for summary judgment alleging that plaintiff’s
claims are time barred.
Specifically, defendant contends that
plaintiff’s Privacy Act claim is barred by the two-year statute of
limitations applicable to such claims. With respect to plaintiff’s
Title VII and Rehabilitation Act claims, defendant contends that
because plaintiff failed to seek counseling within 45 days of the
accrual
of
the
claims,
he
has
failed
to
comply
with
the
administrative requirements of those acts, and is therefore barred
from bringing such claims.
Defendant also contends that to the
extent plaintiff is alleging any other violation of Title VII,
plaintiff has failed to bring such a claim within 90 days of the
final administrative adjudication of that claim, and therefore, is
barred from bringing any such claim in federal court.
Plaintiff opposes the defendant’s motion and contends that his
claims are not time barred.
Plaintiff also alleges that the
instant motion is premature, as the parties have not yet engaged in
discovery.
Plaintiff alleges that discovery on the limitations
issue is necessary, and therefore contends that defendant’s motion
must be denied.
For the reasons set forth below, I grant defendant’s motion
for
summary
judgment,
and
dismiss
prejudice.
Page -2-
plaintiff’s
claims
with
BACKGROUND
The following facts are derived from the plaintiff’s Complaint
and the defendant’s statement of undisputed facts.
Plaintiff John
Powell began working for the U.S. Postal Service in 1993.
In
November,
of
2005,
Powell
filed
an
administrative
complaint
discrimination against the Postal Service claiming that he was
being
sexually
harassed
by
a
female
supervisor.
In
his
administrative complaint, Powell claimed that he experienced “pain
and suffering and mental anguish” as a result of the alleged
discrimination.
Thereafter, Joseph Sassi (“Sassi”), an attorney
for the Postal Service who was assigned to defend the service,
sought plaintiff’s medical records for the purpose of investigating
plaintiff’s allegations of pain, suffering, and mental anguish.
Although Sassi allegedly on numerous occasions requested that
Powell furnish authorization to obtain his medical records, Powell
allegedly never provided such authorization.
In May, 2006, Sassi requested plaintiff’s medical file from
Powell’s Postal Service worksite.
According to the Complaint, the
records were provided to Sassi at that time despite plaintiff’s
failure to authorize release of the medical records.
Because
Plaintiff had not authorized the disclosure of his medical file, he
claims that the defendant violated his rights under the Privacy
Act. Powell also claims that the disclosure of his medical records
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constituted unlawful retaliation by the Postal Service due to his
having previously complained of racial and gender discrimination.
DISCUSSION
I.
Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant
is
entitled
to
judgment
as
a
matter
of
law."
When
considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.
Scott v. Harris, 550 U.S. 372, 380 (2007).
If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.
Industrial
Co.
Scott, 550 U.S. at 380 (citing Matsushita Elec.
v.
Zenith
Radio
Corp.,
475
U.S.
574,
(1986)).
II.
Privacy Act Claims
The Privacy Act provides in relevant part that:
No agency shall disclose any record which is
contained in a system of records by any means
of communication to any person, or to another
agency, except pursuant to a written request
by, or with the prior written consent of, the
individual to whom the record pertains....
Page -4-
586-587
5 U.S.C. § 552a(b).
A cause of action under the Privacy Act must
be brought within two years of the time that plaintiff “knew or
should have known of the initial Privacy Act violation.” Baker v.
U.S.,
943
F.Supp.
270,
273
(W.D.N.Y.,
1996);
5
U.S.C.
§
552(a)(g)(5).
In the instant case, plaintiff claims that at the latest, he
knew of the alleged Privacy Act violation on August 6, 2008.1
Powell, however, did not file the instant action until August 20,
2010, more than two years after he allegedly learned of the
possible Privacy Act violation. Because Powell failed to bring his
Privacy Act claim within the two-year period prescribed by the
Privacy Act, I find that his claim is time-barred, and I grant
defendant’s motion for summary judgment with respect to this claim.
III. Rehabilitation Act Claims
The Rehabilitation Act of 1973 provides in relevant part that
“no otherwise qualified individual in the United States . . .
shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to
discrimination . . . by the United States Postal Service.
U.S.C.A. §
794.
Although
the
statute
does
not
29
specifically
recognize retaliation against a person for engaging in a protected
1
For reasons set forth below, I find that defendant has established, through plaintiff’s
correspondence, that Powell was aware of the alleged unauthorized disclosure of his medical
records in August, 2006. For purposes of plaintiff’s Privacy Act claims, however, the court will
consider the latest possible date of knowledge alleged by Powell, August 6, 2008.
Page -5-
activity
as
a
prohibited
act,
the
Department
of
Labor
has
promulgated a regulation recognizing retaliation as a prohibited
activity, and the Second Circuit Court of Appeals has recognized
the same.
See 29 C.F.R. § 1614.101(b); Sands v. Runyon, 28 F.3d
1323, 1331 n.1 (2nd Cir. 1994) (Sands I).
In this case, plaintiff alleges that the defendant retaliated
against him for making claims of discrimination by disclosing his
medical records without his authorization. However, because Powell
has not administratively exhausted this claim in a timely manner,
his Rehabilitation Act claim is time-barred.
Pursuant
to
regulations
applicable
to
Rehabilitation Act
claims, an employee claiming a violation of the Act must, within 45
days of the allegedly discriminatory or retaliatory conduct, seek
counseling with the Equal Employment Opportunity Commission.
29 C.F.R. § 1614.105(a)(1).
See
Failure to seek such counseling,
absent equitable tolling, renders the claim time-barred. Chmiel v.
Potter,, 2010 WL 5904384, *7 (W.D.N.Y., Dec. 07, 2010)(Schroeder,
M.J.).
In this case, plaintiff raised the issue of the alleged
unauthorized disclosure of his medical records in two separate
administrative complaints: one filed on August 16, 2008, and the
other filed February 7, 2009.
However, because I find that Powell
discovered the allegedly unauthorized disclosure of his records on
or
before
August
4,
2006,
I
find
Page -6-
that
his
administrative
complaints, both of which were filed more than two years after he
discovered the disclosure, are untimely. Accordingly, I find that
plaintiff has failed to timely exhaust his Rehabilitation Act
claim.
Although Powell alleges in his Complaint that he did not learn
that his medical records were disclosed without his authorization
until August, 2008, the facts alleged in the Complaint, along with
unrebutted
facts
submitted
by
the
defendant
on
this
motion,
establish that plaintiff was aware of the disclosure of his records
in August 2006.
As stated in the Complaint, Powell alleges that in
August, 2006, he was called to the Nurse’s office at his place of
employment, where he saw his medical records sitting on the desk,
and was shown a written request for medical records made by Joseph
Sassi dated May of 2006.
At that time, Powell indicated that he
had not authorized disclosure of his medical records. Accordingly,
based on the facts alleged in the Complaint, Powell was aware in
August, 2006, that Sassi had requested his medical records in May,
2006, and was aware that he had not authorized disclosure of his
records.
Although the Complaint does not allege that Powell learned in
August, 2006, that his records had actually been sent to Sassi
pursuant to Sassi’s May, 2006 request, correspondence from Powell
to Sassi dated August 4, 2006 confirms that Powell did in fact know
that his medical records had been sent to Sassi without Powell’s
Page -7-
authorization.
Specifically, Powell sent a handwritten letter to
Sassi stating: “you are in possession of my medical files since
May 9, 2006".
See Exhibit D to the August 1, 2011 Declaration of
Joseph Sassi.
Accordingly it is clear that on August 4, 2006,
plaintiff was aware that his medical records had been disclosed to
Sassi without his authorization,.
Because Powell knew of the
alleged unauthorized disclosure of his medical records in August,
2006, but did not file an administrative complaint regarding that
act until August, 2008, his claims are barred by the 45 day period
for
seeking
counseling
regarding
alleged
Rehabilitation
Act
violations.
In opposition to defendant’s motion, plaintiff claims that
because no discovery has taken place in this case, he is unable to
effectively respond to the defendant’s motion, and that discovery
is necessary to clarify the limitations issues.
I find, however,
that plaintiff has not demonstrated that discovery would alter this
court’s finding that plaintiff failed to seek counseling within 45
days of his learning that his medical records had allegedly been
disclosed without his authorization.
Plaintiff has submitted no
admissible evidence countering his August 4, 2006 letter in which
he acknowledges in writing that he knew that his medical records
had been sent to Sassi.
Nor has he submitted any evidence to
suggest that the 45 day period could be tolled for an additional
year and
10
months to
render
his August
Page -8-
2008
administrative
complaint
timely.
I
therefore
deny
plaintiff’s
request
for
additional discovery.
IV.
Title VII Claims
Just as the Rehabilitation Act requires that a person seeking
redress under the statute seek counseling within 45 days of the
date on which the allegedly discriminatory conduct occurred, so too
Title VII requires that a federal employee alleging discrimination
must seek counseling within 45 days of allegedly discriminatory or
retaliatory conduct.
See 29 C.F.R. § 1614.105.
Because plaintiff
filed his administrative complaint alleging that the disclosure of
his medical records constituted retaliation in violation of Title
VII in August, 2008, more than two years after learning of the
alleged unauthorized disclosure, I find that he has failed to
timely exhaust this claim.
To the extent plaintiff’s Complaint
could be construed as alleging other acts of retaliation, such as
being falsely accused of having unexcused absences, being stared at
in an “intimidating” manner, or being fired, plaintiff failed to
appeal the administrative dismissal of those claims, and failed to
file the instant action within 90 days after his administrative
charge of discrimination was dismissed.2 See 42 U.S.C. § 2000e16(c)(providing that employee challenging administrative dismissal
of a discrimination claim must file federal Complaint within 90
2
Plaintiff’s administrative complaint of discrimination was denied on February 1, 2010.
The instant Complaint, however, was not filed until August 9, 2010, 189 days after plaintiff’s
administrative claims of discrimination were dismissed.
Page -9-
days of the final administrative action). Accordingly, I find that
plaintiff’s Title VII retaliation claims are time barred.
CONCLUSION
For the reasons set forth above, I grant defendant’s motion
for summary judgment in its entirety, and dismiss plaintiff’s
claims with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
April 6, 2012
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