Mulvey v. Perez
MEMORANDUM AND ORDER denying 59 MOTION for Summary Judgment. Signed by Senior Judge Bernard A. Friedman on 4/18/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) Modified text on 4/18/2017 (hb).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
JOHN A. MULVEY,
Civil Action No. 3:14-cv-01835
HON. BERNARD A. FRIEDMAN
THOMAS E. PEREZ,
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is presently before the Court on plaintiff’s motion for partial summary
judgment [docket entry 59]. Defendant has filed a response in opposition and plaintiff has filed a
reply. As the issues have been fully briefed, the Court shall decide the motion without a hearing.
This is an employment discrimination action. Plaintiff, a former employee of the
Department of Labor (“DOL”), alleges that he was subjected to discrimination and a hostile work
environment because of his disability, denied medical leave, and retaliated against, in violation of
his rights under Title VII, the Rehabilitation Act, the Family and Medical Leave Act, and the Fair
Labor Standards Act. Plaintiff also asserts a claim under the Privacy Act, based on the alleged
disclosure of plaintiff’s medical information by one Labor Department employee to another. In the
instant motion, plaintiff seeks summary judgment on his Privacy Act claim.
Under Fed. R. Civ. P. 56(a), summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” “[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that there
be no genuine dispute as to any material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748 (1986) (emphasis in original). Viewing the evidence in the light most favorable to the opposing
party, summary judgment may be granted only if the evidence is so one-sided that a reasonable factfinder could not find for the opposing party. See id. at 248-50; Street v. J.C. Bradford & Co., 886
F.2d 1472, 1478-80 (6th Cir. 1989). In other words, “[a] material issue of fact exists where a
reasonable jury, viewing the evidence in the light most favorable to the non-moving party, could
return a verdict for that party.” Vollrath v. Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.
1990). “The pivotal question is whether the party bearing the burden of proof has presented a jury
question as to each element of its case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
Plaintiff’s Privacy Act claim is based on the following allegation:
47. On September 20, 2012, Defendant through its agent, Theresa
Ball, violated the Privacy Act of 1973 and DLMS - 5 Chapter 200, by
knowingly and willfully disclosing Plaintiff’s confidential medical
information, to include a list of Plaintiff’s confidential prescription
medicines, to a non-management employee, the SOL Time Keeper,
who did not have legal authority, or a need to know, and without the
consent of Plaintiff.
51. Plaintiff alleges that such was an intentional violation of the
Act made by a high ranking attorney within the Department of Labor
who should have known of the Department’s own policies, rules and
Compl. ¶¶ 47, 51. In his motion for partial summary judgment, plaintiff states that on September
20, 2012, he sent an email to Theresa Ball, the DOL Associate Regional Solicitor, asking for advice
as to how he could take a medical leave of absence.1 In this email, plaintiff stated that his physician
A copy of this email, and Ball’s response, is attached as an exhibit to Ball’s declaration
[docket entry 69].
had changed one of his medications, and he named the old and new medications. Ball responded as
follows, copying the “timekeeper,” Naomi Adams, on the response:
Please send Joyce Adams, our timekeeper, your list of leave, by day
and type, claimed this pay period on a Form 71 . She will attempt to
determine your estimated leave status. In the future, please send the
timekeeper a copy of all leave requests and, as I have reminded you
in the past, they should be in the form of a Form 71 and in advance.
Make sure it is clear for each day what type of leave you are
requesting. Include any leave you are requesting for today. As you
know these forms are available on line and you have made use of the
on line forms in the past.
Ball’s response included plaintiff’s email, thereby disclosing the medication names, and the
condition for which they had been prescribed, to Adams.
The elements of plaintiff’s Privacy Act claim are that “(1) information in the form
of a record contained in a system of records; (2) was disclosed by a federal agency; (3) willfully or
intentionally; and (4) the disclosure had an adverse impact on the plaintiff.” Whyde v. Rockwell Int’l
Corp., 101 F. App’x 997, 999 (6th Cir. 2004) (citation and internal quotation marks omitted).
Regarding the level of intent required, the Sixth Circuit has stated:
To recover damages, the plaintiff must show that the agency acted
“intentionally” or “willfully,” which is a standard “somewhat greater
than gross negligence.” White v. Office of Personnel Management,
840 F.2d 85, 87 (D.C.Cir.1988) (per curiam) (quotations and citation
omitted); see Rose v. United States, 905 F.2d 1257, 1260 (9th
Cir.1990). An agency acts intentionally or willfully “either by
committing the act without grounds for believing it to be lawful, or
flagrantly disregarding others’ rights under the [Privacy] Act.”
Wilborn v. Department of Health & Human Servs., 49 F.3d 597, 602
(9th Cir.1995) (quotations and citation omitted); see Andrews v.
Veterans Admin., 838 F.2d 418, 425 (10th Cir.), cert. denied, 488
U.S. 817, 109 S.Ct. 56, 102 L.Ed.2d 35 (1988).
Mount v. U.S. Postal Serv., 79 F.3d 531, 533 (6th Cir. 1996). In determining whether the disclosure
in question was made willfully or intentionally, “a court may consider the entire course of conduct
that resulted in the disclosure.” Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 551 (6th Cir. 2010).
Further, disclosure is permitted to agency employees “who have a need for the record in the
performance of their duties.” 5 U.S.C. § 552a(b)(1).
Plaintiff has failed to show his entitlement to summary judgment on this claim. First,
plaintiff has not shown that Hall’s email was “contained in a system of records,” as required by the
first element of a Privacy Act claim under Whyde, supra. A “system of records” is defined as “a
group of any records under the control of any agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other identifying particular
assigned to the individual.” 5 U.S.C. § 552a(a)(5). In the present case, plaintiff alleges that the
email in question was under Hall’s control, not “under the control of any agency” – here, DOL. One
court has specifically held that “office emails” are not part of a “system of records” for Privacy Act
purposes. Cloonan v. Holder, 768 F. Supp. 2d 154, 164 (D.D.C. 2011). Moreover, plaintiff has not
shown that Hall “retrieved” the email in question from any system of records, but only that she
responded to plaintiff’s email and copied another person.
Even if plaintiff could surmount these obstacles, he has not shown that Hall acted
with the requisite willfulness or intent. Hall avers that plaintiff had on at least fourteen occasions
during the year preceding September 20, 2012, sent emails directly to Adams in which he requested
leave based on his various medical conditions, and that in those emails he often provided her with
detailed information about those conditions and related procedures and appointments. See Ball
Decl., Ex. B. As plaintiff had previously provided such confidential medical information to Adams
in connection with leave requests, plaintiff can hardly fault Hall for forwarding his September 20,
2012, email to Adams, which contained similar information in connection with a request for
assistance in seeking medical leave. Nor, finally, has plaintiff shown that Adams did not have a
legitimate need for the medical information, given that he was seeking additional leave for medical
reasons, after, according to his email inquiry, he had exhausted all available leave.
For these reasons, the Court concludes that plaintiff has not demonstrated his
entitlement to summary judgment on his Privacy Act claim. Accordingly,
IT IS ORDERED that plaintiff’s motion for partial summary judgment is denied.
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
SITTING BY SPECIAL DESIGNATION
Dated: April 18, 2017
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