Pagels v. United States Office of Personnel Management Recruitment and Staffing

Filing 19

ORDER signed by Judge Pamela Pepper on 5/26/2016 GRANTING 8 Motion for Summary Judgment. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERNEST J. PAGELS,
Plaintiff,
v.

Case No. 15-cv-890-pp

UNITED STATES OFFICE OF
PERSONNEL MANAGEMENT,
Defendant.
______________________________________________________________________________
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (DKT. NO. 8)
______________________________________________________________________________
On July 22, 2015, plaintiff Ernest J. Pagels, Jr., who is representing
himself, filed a complaint against the United States Office of Personnel
Management (“OPM”). Dkt. No. 1. The plaintiff asks the court to enter an order
compelling OPM to give him a copy of the medical records that the United
States Postal Service (“USPS”) allegedly used to determine that he is ineligible
for employment with the USPS. See Doc. 1-2, at 2. The government has moved
for summary judgment, contending that the court should enter judgment in its
favor because the plaintiff did not exhaust his administrative remedies to
obtain his medical records through agency procedures available to him. Dkt.
No. 9, at 1. For the reasons explained in this order, the court will grant the
government’s motion.
I.

UNDISPUTED FACTS
The plaintiff is a United States Air Force veteran, and he is disabled. He

was employed by the USPS in the past, and he has been unsuccessful in his
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attempts to secure another position with the USPS. According to the
Declaration of Erin M. Dimick, an Employment and Placement Specialist for
the USPS, in June 2015, the plaintiff applied for employment with the USPS in
Warren, Pennsylvania. 1 Dkt. No. 9 at 3, ¶5. In a letter dated July 7, 2015, the
USPS advised the plaintiff that he was not qualified to be employed by the
USPS due to his medical history. Dkt. No. 1-2 at 1.
The July 7, 2015, letter from the USPS upon which the plaintiff bases his
claim was issued in error, because the USPS used the wrong “template letter”
to communicate its adverse decision to the plaintiff. Dkt. No. 9 at 3-4, ¶¶3-13.
The plaintiff was not denied employment with the USPS based on any medical
reason. Id. at 4, ¶11. Instead, the USPS deemed the plaintiff unsuitable for
employment because of his prior employment history with USPS and the fact
that the Postal Service has an active restraining order against the plaintiff. Id.,
¶12. On September 1, 2015, the USPS sent a corrected letter to the plaintiff,
explaining the correct reason for his disqualification. Id., ¶13. Before filing this
case, the plaintiff did not submit a request for a copy of his medical records
with either OPM or the USPS, the agency which allegedly used the records to
deny him a USPS job. Id. at 3, ¶¶1-2.

The government supported its proposed statement of undisputed facts with
declarations executed by Linda K. Crump, Erin M. Dimick, Charles D. Watters,
and Trina M. Porter. Dkt. Nos. 10-13. Mr. Pagels did not dispute any of the
government’s proposed statements of fact, so the court finds those facts to be
undisputed for purposes of this motion.
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II.

SUMMARY JUDGMENT STANDARDS
A court must grant summary judgment when there is no genuine dispute

as to any material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548 (1986). A court appropriately grants summary judgment “against a
party who fails to make a 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.” Id. The “purpose of summary judgment is to pierce the
pleadings and to assess the proof in order to see whether there is a genuine
need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587, 106 S. Ct. 1348 (1986) (internal quotation marks omitted) (citation
omitted). “A party will be successful in opposing summary judgment only when
they present definite, competent evidence to rebut the motion.” EEOC v. Sears,
Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).
“Material facts” are those facts which “might affect the outcome of the
suit,” and a dispute about a material fact is “genuine” if a reasonable finder of
fact could find in favor of the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). The party opposing summary
judgment cannot simply rest on allegations or denials in its pleadings; it must
also introduce affidavits or other evidence setting forth specific facts showing a
genuine issue for trial. Anders v. Waste Mgm’t of Wisconsin, 463 F.3d 670, 675
(7th Cir. 2006). The court views all facts and draws all reasonable inferences in
favor of the nonmoving party, Tanner v. Jupiter Realty Corp., 433 F.3d 913,
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915 (7th Cir. 2006), but “inferences that are supported by only speculation or
conjecture will not defeat a summary judgment motion,” Herzog v. Graphic
Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir. 2014) (quoting Tubergen v. St.
Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008)).
III.

DISCUSSION
The court must grant the defendant’s motion for summary judgment,

because the plaintiff did not first exhaust his administrative remedies by
requesting the USPS and OPM to provide him with copies of his medical
records before filing his complaint. The Privacy Act of 1974, 5 U.S.C. §552a,
governs this case because the plaintiff requests the production of records
pertaining to himself and no one else. Id, §552a(b). The Act provides in relevant
part:
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 . . . .
* * *
Each agency that maintains a system of records shall
. . . upon request by any individual to gain access to
his record or to any information pertaining to him
which is contained in the system, permit him and
upon his request, a person of his own choosing to
accompany him, to review the record and have a copy
made of all or any portion thereof in a form
comprehensible to him, except that the agency may
require the individual to furnish a written statement
authorizing discussion of that individual's record in
the accompanying person's presence . . . .

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Id., §552a(b), (d)(1). The Privacy Act allows an individual to bring a civil action
against an agency in a federal district court if the agency “refuses to comply
with an individual request under subsection (d)(1) of this section.” Id.,
§552a(g)(1). If the agency has adopted procedures relating to handling requests
for records, the individual must submit his request to the agency before filing a
complaint. E.g., Bravata v. Securities & Exchange Comm’n, No. 14-1276, 2015
WL 4077446, at *4 (D.D.C. July 6, 2015) (collecting cases).
OPM and USPS each have procedures for the submission and processing
of Privacy Act requests. 5 C.F.R. §§297.201 – 297.208 (OPM) and 39 C.F.R.
§§266.6 – 266.9 (USPS). The plaintiff, however, did not make a Privacy Act
request of either the OPM or the USPS before filing his complaint. Dkt. No. 9 at
3, ¶¶1-2. Exhaustion of administrative remedies is not required if the plaintiff
challenges the adequacy of an agency’s procedure, Bavido v. Apfel, 215 F.3d
743, 748 (7th Cir. 2000), but the plaintiff is not challenging the records request
procedures of the OPM or the USPS—he is seeking an order directing the OPM
to release his records. The court must enter summary judgment in the
government’s favor, because the plaintiff did not exhaust his administrative
remedies—did not submit a Privacy Act request directly to the two agencies
involved—before filing his complaint.
Alternatively, the government argues that the court should enter
summary judgment in its favor because “the records sought by Mr. Pagels do
not exist.” Dkt. No. 9 at 6. The government contends that there are no medical
records on which the government based its adverse employment decision,
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because the plaintiff was denied employment because of his prior employment
history with USPS and the restraining order currently in place against him, not
his medical history. It is unnecessary for the court to reach this argument,
because the plaintiff has failed to exhaust his administrative remedies by
requesting copies of his medical records from the USPS and OPM.
The court will grant the government’s motion for summary judgment and
dismiss the plaintiff’s complaint without prejudice.
IV.

CONCLUSION
The court GRANTS the defendant’s motion for summary judgment (Dkt.

No. 8), and DISMISSES WITHOUT PREJUDICE the plaintiff’s complaint in its
entirety. The clerk will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
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Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
Dated in Milwaukee, Wisconsin this 26th day of May, 2016.

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