Opinion
No. 99-CV-0745-DRH.
July 11, 2001.
MEMORANDUM AND ORDER
I. Introduction and Procedural History
This matter comes before the Court on Defendants' motion to dismiss Counts VII and XIV and for partial summary judgment on Counts XII and XIII (Doc. 53) and Defendants' motion to dismiss Counts I, II and III and for partial summary judgment on Counts IV, VI and VII (Doc. 76). Based on the reasons stated herein, the Court grants Defendants' motions.
In September 1999, Robbyn Brown, an employee of the Internal Revenue Service ("IRS"), filed a fourteen-count pro se complaint against Lawrence H. Summers, Secretary of the Treasury, Dorian Morely, Director Regional Complaints Center, Deloris Featherstone, and Kathleen Swain (Doc. 1). Brown brings this suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, 1981a, 1983 and 1985, and violations of both the Freedom of Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. In Counts I through VII and IX through XI, Brown alleges that Defendants discriminated against her on the basis of her race (African American) and her gender. In Count VIII, Brown alleges that Featherstone and Swain conspired to deny her due process and equal protection under the law in violation of 42 U.S.C. § 1981, 1983 and 1985. In Counts XII and XIII, Brown alleges that Defendants violated the Freedom of Information Act, 5 U.S.C. § 552 et seq., and the Privacy Act, 5 U.S.C. § 552a et seq., by disclosing the contents of Brown's discrimination action and stating false information to colleagues. Lastly in Count XIV, Brown alleges that Morely improperly rejected her administrative claims in violation of 42 U.S.C. § 1981 and 1983.
On April, 11, 2000, the Court granted in part and denied in part Summer's motion to dismiss (Doc. 19). The Court dismissed with prejudice Brown's Freedom of Information claims, and denied the motion as to the Privacy Act claims. Now before the Court are Defendants' motions to dismiss and for partial summary judgment.
It is significant to note that Brown is proceeding pro se herein. The pleadings of pro se litigants should not be held to the same stringent standards as pleadings drafted by formally trained lawyers; instead they must be liberally construed. See Kyle II v. Patterson, 196 F.3d 695, 697 (7th Cir. 1999) (citing Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 378 (7th Cir. 1988) (pro se complaints/pleadings are to be liberally construed.)) See also Cruz v. Beto, 405 U.S. 319, 322 (1972).
II. Facts
The facts are taken from Brown's complaint and the evidence submitted by the parties. The allegations in Brown's complaint stem from actions that took place from 1994 to 1999, when she filed suit. The Court notes that almost all of the alleged instan ces in Bro wn's comp laint do not co ntain specific dates.
Brown is a Certified Public Accountant who worked for the IRS at the Fairview Heights, Illinois office as an Internal Revenue Agent. Brown maintains that she was discriminated against because of her race and her gender. She claims that she realized that she was being discriminated against on or around May 7, 1996, when she learned that she did not get a promotion. She also alleges that on various occasions between 1994 and 1996 her former manager, Richard Knowles, allegedly did the following: (a) assigned selective return work assignments to other co-workers; (b) did not assist her with employee development; (3) issued her an evaluation for the period covering 3/2/94 through 3/1/95 that lacked uniformity and consistency; (4) publicly demeaned her; and (5) did not select her for the position of Internal Revenue Agent, GS-512-13 for Vacancy Announcement Number NPB 95-508MSL on or around May 8, 1996. Further, she contends that her other manager, Kathleen Swain, and Branch Chief, Deloris Featherstone, retaliated against her for contacting and engaging EEO counseling in May 1996. Specifically, she maintains that she was subjected to multiple workload/work in progress; she was subjected to 100% case file evaluations on closed cases; she was subjected to the imposition of work-related policies and procedures more harshly than other co-workers; she was denied acting manager assignments; and she was given an annual performance appraisal for the period covering 3/1/95 through 3/31/96. Brown also alleges that false and misleading testimony was used during her 1996 Evaluation.
Additionally, Brown alleges that Swain violated the Privacy Act by disclosing portions of her EEO file without her consent to her co-workers Cheryl Pagan and Karen Hudgins. Lastly, she alleges that Morely denied her equal protection by "prematurely partially dismissing" her 1997 EEO complaint and refusing to investigate and dismissing her 1999 EEO complaint.
III. Motion to Dismiss
Federal notice pleading requires a plaintiff to set forth in his complaint "a short and plain statement . . . that will provide the defendant fair notice of the claim." Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993)). In deciding whether to grant a motion to dismiss for failure to state a claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), the court accepts as true all well-pled allegations and resolves in favor of the plaintiff all reasonable inferences. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). See also Autry v. Northwest Premium Services, Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). Dismissal under Rule 12(b)(6) is proper only if the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accord Lifanda v. Elmhurst Dodge, Inc., 237 F.3d 803, 806 (7th Cir. 2001); Looper Maintenance Service, Inc. v. City of Indianapolis, 197 F.3d 908, 911 (7th Cir. 1999).
IV. Analysis
A. Counts I, II and III
O'Neill argues that Brown's claims of sex and race discrimination under Counts I, II and III are not timely because she had not contacted the IRS EEO counselor within 45 days of the alleged discriminatory conduct as required under 29 U.S.C. § 1614.105(a)(1). Brown responds that her May 7, 1996 contact with the EEO counselor covers the prior acts of discrimination because she was not aware nor could have reasonably known that Mr. Knowles intentionally discriminated against her and other females and minorities in rating performance evaluations, developmental assignments and return assignments. O'Neill replies that Brown is attempting to tie prior alleged acts of discrimination to her failure to promote claim under Count V. The Court agrees with O'Neill.
"Exhaustion of administrative remedies is a prerequisite for bringing an action under Title VII charging federal discrimination." Pack v. Marsh, 986 F.2d 1155, 1157 (7th Cir. 1993). An individual who believes that he or she has an employment discrimination claim against the United States Government must initiate contact with an employment counselor within 45 days of the alleged discriminatory action. 29 C.F.R. § 1614.105; See also Foster v. Bentsen, 919 F. Supp. 293, 295 (N.D. Ill. 1996). This deadline is construed as a statute of limitations and not as a jurisdictional prerequisite. Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995) (citing Rennie v. Garrett, 896 F.2d 1057, 1062-63 (7th Cir. 1990)). However, the 45-day time limit may be extended:
29 C.F.R. § 1614.105 provides in part that: "(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. (1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective d ate of the actio n."
when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.29 C.F.R. § 1614.105(a)(2).
Here, Brown's initial contact with an EEO counselor for her first EEO complaint was on May 7, 1996. Therefore, any action on any specific claims of employment discrimination that occurred before March 23, 1996 (45 days prior to contact with the EEO Counselor) are time barred. 29 C.F.R. § 1614.105. Brown does not contest the fact that she never contacted an EEO Counselor concerning the race or sex discrimination that she allegedly suffered prior to that time. She maintains that her circumstances fall within the 45 day time limit extension based on the "continuing violation" doctrine because she was not aware of the race and sex discrimination until she was denied the promotion in May 1996.
"The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period." Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992). Although there exist three viable forms of the continuing violation doctrine, Brown does not identify which one she relies upon to support her argument. Presumably, Brown refers to the third form by arguing that the decision not to promote her was closely related to the other untimely acts. However, not only does Brown fail to show that the acts were closely related under the relevant factors, Selan, 969 F.2d at 565 , she fails to meet the threshold circumstance for applying the third continuing violation theory: that the employer has covertly followed a practice of discrimination. Id. at 565. The Court finds that Brown relies on conclusory allegations, without supporting evidence, that she did not know that she was being intentionally discriminated because of her race and gender. Even if this Court were to find that the time limit should be extended in this case, it would be unreasonable to extend the time limit to encompass the two year time frame before Brown applied for the promotion. Brown did not exercise due diligence in exploring her remedies for the discrimination she allegedly suffered. The Court concludes that Brown's circumstances do not fall within the time limit extension under 29 C.F.R. § 1614.105(a)(2). Therefore, Brown has not satisfied the statutory requirement of pursuing administrative remedies before filing a suit in federal court. Her failure to contact an EEO counselor clearly violates the 45-day time requirement. Accordingly, the Court GRANTS with prejudice O'Neill's motion to dismiss Counts I, II and III for failure to timely exhaust administrative remedies.
There is some doubt over the propriety of applying the continuing violation doctrine where, as here, equitable tolling m ay be app lied to a limitation s period. Moskowitz v. Trustees of Perdue Univ., 5 F.3d 279, 282 (7th Cir. 1993). However, the doctrine continues to be applied. E.g., Koelsch v. Belton e Elecs. Corp., 46 F.3d 705, 707 (7 th Cir. 1995).
B. Counts VIII and XIV
In Count VIII Brown alleges that Featherstone and Swain conspired to deny her due process and equal protection in violation of 42 U.S.C. § 1981, 1983 1985. In Count XIV Brown alleges that Morley rejected her administrative claims in violation of 42 U.S.C. § 1981 1983. Defendants argue that these counts must be dismissed because Title VII is the exclusive remedy for a federal employee alleging discriminatory employment practices. Brown argues that Defendants are equitably estopped from advancing this position. The Court agrees with Defendants.
Under Title VII it is clear that the head of the relevant federal department or agency is the only appropriate plaintiff in a Title VII action brought by a federal employee. 42 U.S.C. § 2000e-16(c) (in an employment discrimination suit against the federal government, "the head of the department, agency or unit, as appropriate, shall be the defendant"); see also Ellis v. United States Postal Dept., 784 F.2d 835, 838 (7th Cir. 1986); McGuinness v. United States Postal Service, 744 F.2d 1318, 1322 (7th Cir. 1984). Here, Secretary O'Neill is the head of the appropriate government department — i.e., the Department of Treasury — of which the IRS is a part. Accordingly, the only appropriate Title VII defendant is Secretary O'Neill, in his official capacity. Therefore, Brown fails to state a claim in any of the counts that allege violations of Title VII against Morley, Featherstone and Swain.
In fact, because Title VII is a federal employee's exclusive avenue for relief from allegedly discriminatory employment practices, Brown fails to state a claim against Morely, Featherstone and Swain under any legal theory. This issue was settled when the Supreme Court held that a federal employee could not sue a governmental agency for employment discrimination under both Title VII and § 1981. See Brown v. General Services Admin., 425 U.S. 820, 835 (1976). The Court reasoned that the statute's "careful blend of administrative and judicial enforcement powers" shows Congress' intent that the statute provide the exclusive means of granting relief for federal employees against the government. Brown, 425 U.S. at 832-33; Espinueva v. Garrett, 895 F.2d 1164, 1165 (7th Cir. 1990); see also Ellis, 784 F.2d at 838 (claims for relief under 42 U.S.C. § 1981 1985 and Fifth Amendment dismissed). Brown has not established by law or fact that any of the claims contained in Counts VIII and XIV are independent of her Title VII employment claims. Therefore, the Court concludes as a matter of law that Title VII provides for Brown's exclusive remedy and the Court GRANTS with prejudice Defendants Featherstone, Swain and Morley's motion to dismiss Counts VIII and XIV.
V. Summary Judgment
Summary judgment is proper where the pleadings and affidavits, if any, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Wyatt v. UNUM Life Insurance Company of America, 223 F.3d 543, 545 (7th Cir. 2000); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999). The Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999).
In reviewing a summary judgment motion, the Court does not determine the truth of asserted matters, but rather decides whether there is a genuine factual issue for trial. EEOC v. Sears, Robuck Co., 233 F.3d 432, 436 (7th Cir. 2000). No issue remains for trial "unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted. . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996), cert. denied, 117 S. Ct. 683 (1997); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994).
This standard should be applied "with added rigor" in employment discrimination cases, in which intent and credibility are crucial issues. Webb v. Clyde Choate Mental Health and Development Center, 230 F.3d 991, 997 (7th Cir. 2000); Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999); King v. Preferred Technical Group, Inc., 166 F.3d 887, 890 (7th Cir. 1999). This standard reflects pronouncements that in employment discrimination cases, which often involve issues of motive and intent, summary judgment must be approached with caution. Huhn v. Koering Co., 718 F.2d 239, 242 (7th Cir. 1983). Huhn relied on an earlier case which recognized that, although summary judgment is improper in employment discrimination cases which involve "weighing of conflicting indications of motive and intent," where a plaintiff has no evidence of discriminatory motive to "put on the scales for weighing," summary judgment is appropriate. Id.
VI. Analysis
A. Count IV
In Count IV, Brown alleges that she was denied "reasonable supplies necessary in performing her duties while providing the same for similarly situated employees" and that her manager "Richard Knowles acting on behalf of Defendant publicly demeaned Plaintiff and other female employees while not treating white males in said manner." (Doc. 1, p. 9). O'Neill argues that summary judgment is proper because Brown has failed to establish a prima facie case of either race or sex discrimination. The Court agrees with O'Neill.
The Court notes that Count IV contains other allegations pertaining to instances involving other women a nd minorities who are not p arties to this lawsuit. Thus, the Court finds these allegations are not proper to support Brown's individual claims of race and sex disc rimination.
Title VII makes it unlawful for an employer to discriminate against an employee because of the employee's race or gender. 42 U.S.C. § 2000e et seq. The plaintiff must prove that she was a victim of intentional discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993). A plaintiff can satisfy her burden of proof in a race or sex discrimination case in two ways: through direct evidence of discriminatory intent or through indirect evidence demonstrated by the burden-shifting method presented in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 516 (7th Cir. 1996); Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir. 1993). Here, Brown has not presented direct evidence of discrimination, and thus the Court turns to the burden-shifting method of McDonnell-Douglas.
The first step for Brown under the McDonnell-Douglas method is to establish a prima facie case of race or sex discrimination. Gonzalez v. Ingersoll Milling Machine Co., 133 F.3d 1025, 1032 (7th Cir. 1998); Pasqua, 101 F.3d at 516 . To establish a prima facie case of race or sex discrimination, Brown must show: (1) she is in a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) that others, similarly situated but not of the protected class, were treated more favorably. Morrow v. Wal-Mart Stores, Inc., 152 F.3d 559, 561 (7th Cir. 1998) (citing Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir. 1996)); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000).
Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its action. Cowan v. Glenbrook Sec. Servs., Inc., 123 F.3d 438, 445 (7th Cir. 1997). Then the burden shifts back to the plaintiff to show the defendant's reason is in fact pretext for discrimination. Bahl v. Royal Indemnity Co., 115 F.3d 1283, 1290 (7th Cir.1997). The ultimate burden of proof remains with the plaintiff at all times. See Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir. 1994).
First, the Court must determine whether Brown has established a prima facie case of either race or sex discrimination. O'Neill maintains that Brown cannot set forth a prima facie case of either race or sex discrimination because she neither suffered an adverse employment action nor did her employer treat similarly situated employees outside the protected class more favorably. In response to O'Neill's motion for summary judgment on Count IV, Brown contends that "Count IV speaks to Mr. Knowles' bias towards women and minorities and their performance or what he believes to be their lack thereof. These are disputed genuine issues of material facts." (Doc. 91, p. 7). Even construing Brown's allegations liberally and drawing all reasonable inferences and resolving factual disputes in favor of Brown, the Court concludes that Brown has failed to establish a prima facie case of either race or sex discrimination.
The parties do not dispute that Brown has met the first two elements of the prima facie case.
First, the Court finds that Brown has not established that she suffered an adverse employment action. The Seventh Circuit has defined an adverse action as follows:
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion, evidenced by a decrease in salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Crady v. Liberty Nat. Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993).
Here, Brown asserts that "not receiving necessary supplies" and "being demeaned publicly" are adverse employment actions. The Court finds that these instances are not material and do not constitute an adverse employment action. These instances neither changed her responsibilities, decreased her wages and benefits nor affected her job title. "Not everything that makes an employee unhappy is an actionable adverse action." Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996). Moreover, the Court finds that the oral reprimand Brown received cannot be considered to implicate a sufficient "tangible job consequence" so as to constitute an independent basis of liability under Title VII. See Sweeney v. West, 149 F.3d 550, 556 (7th Cir. 1998)("Absent some tangible job consequence accompanying [the] reprimands, we decline to broaden the definition of adverse employment action to include them."). These instances fall short of the adverse action required to satisfy the prima facie case of either race or sex discrimination.
Further, the Court finds that Brown has not shown that similarly situated employees outside the protected class were treated more favorably. She does not name any other similarly situated employee that received "reasonable supplies necessary" or that was not "demeaned publicly." Accordingly, the Court GRANTS O'Neill's motion for summary judgment on Count IV.
B. Count VI
In Count VI, Brown alleges that in retaliation for her EEO involvement and to discourage her from pursuing her federally protected rights under Title VII Knowles issued her a performance evaluation for the period covering March 1, 1995 to March 31, 1996 that was, inter alia, in violation of the Internal Revenue Manual and Article 12, Section 4 of the Collective Bargaining Agreement, and was "highly subjective, wreaked of retaliatory animus and was not fair." (Doc. 1, p. 13). O'Neill argues that summary judgment is proper because Brown did not engage in statutorily protected activity and because she did not suffer any adverse employment action. Brown responds that her 1996 evaluation was the triggering event of several retaliatory actions directed against her. Based on the following the Court finds that Brown has failed to establish a prima facie case of retaliation.
In her response, Brown raises allegations from Count VII and a new allegation that she was co nstructively disch arged.
Title VII also "protects persons not just from certain forms of job discrimination but from retaliation for complaining about types of discrimination it prohibits." Hamner v. St. Vincent Hospital and Health Care Center, Inc., 224 F.3d 701, 704 (7th Cir. 2000) (quoting Miller v. American Family Mut. Ins., 203 F.3d 997, 1007 (7th Cir. 2000); 42 U.S.C. § 2000e-3(a) . To establish a prima facie case of retaliation, a plaintiff must demonstrate: (1) that he engaged in statutorily protected expression; (2) that he suffered an adverse action by his employer; and (3) that there was a causal link between the protected expression and the adverse action. Hamner, 224 F.3d at 705; Drake v. Minnesota Mining Manufacturing Co., 134 F.3d 878 (7th Cir. 1998); see, e.g., McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). While the Seventh Circuit has defined adverse employment actions quite broadly, see McDonnell v. Cisneros, 84 F.3d 256, 258-59 (7th Cir. 1996), it remains true that the adverse action must be material. See Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996). "[N]ot everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that `an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.'" Smart, 89 F.3d at 441 (quoting Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.1996)).
The retaliation provision of Title VII provides that: "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual. . . because he has opposed any practice made unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) .
A successful prima facie case creates a rebuttable presumption of retaliation, cf. Miranda v. Wisconsin Power Light Co., 91 F.3d 1011 (7th Cir.1996), and shifts to the defendant a burden of articulating a legitimate, non-retaliatory reason for the challenged conduct. Knox, 93 F.3d at 1334. If the defendant does so, the presumption of retaliation dissolves, St. Mary's Honor Center, 509 U.S. at 511-20 (1993), and the plaintiff must then establish that the employer's proffered reason is a pretext for discrimination. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1399 (7th Cir. 1997).
The Court finds that Brown has not established a prima facie case of retaliation. Brown cannot prove that she was retaliated against for complaining to the EEO counselor. Further, she cannot establish that she suffered an adverse employment action. Here, Brown was never fired or demoted. The March 1, 1995 to March 31, 1996 performance evaluation did not change her responsibilities, decrease her wages and benefits or affect her job title. In fact, Brown's performance evaluation was a good evaluation and not a negative evaluation. On a scale of one to five (with five being the highest), Brown received a score of four in the categories of workload management, application of accounting/auditing principles, issue identification, fact finding and customer relations and she received a score of five in the categories of application of law, written product and other duties and assignments. When asked to expound on the certain aspects of the categories in which she received a rating of four, the Group Manager, Swain, did so in a September 30, 1996 memorandum to the NTEU Chapter 43 Chief Steward, Robert Graft. (Doc. 91, Exhibit N). Further, her performance evaluations from March 2, 1994 to March 1, 1995 and March 1, 1995 to March 31, 1996 are the same. (Doc. 80, Exhibits I I and J J). The Court concludes this performance evaluation alone does not constitute an adverse employment action. Thus, the Court finds that Brown has not established a prima facie case of retaliation. Accordingly, the Court GRANTS O'Neill's motion for summary judgment on Count VI.
The eva luation revea ls that a score o f four in the catego ry means that Brown's work per formance "exceeds fully successful" and that a score of five is "outstanding."
Brown maintains that this performance evaluation is negative. The Court notes that a negative evaluation alone does not constitute an adverse employment action. See, Smart, 89 F.3d at 442 . Further, courts are not to sit as a `superpersonnel department' debating the merits of legitimate, nondiscriminatory criteria a busine ss chooses to employ. Wade v. Lerner New York, Inc., 243 F.3d 319, 325 (7 th Cir. 2001) (citations omitted).
In response to O'Neill's argument, Brown asserts that in response to a union grievance, the Defenda nts indicated th at they were thre atening her with a quasi-probationary status and that the Defendants did threaten her with probation. In support of this argument, Brown offers Exhibits M N. However, a review of the pleadings and exhibits do not reveal that Defendants ever threatened Brown with either quasi-probationary status or probation.
C. Count VII
In Count VII, Brown alleges that:
in retaliation for Plaintiff's EEO complaint, Plaintiff's Group Manager Kathleen Swain and Branch Chief, Deloris Featherstone subjected Plaintiff to a continuing course of intentional discrimination and retaliation which included increased work scrutiny via multiple workload and work in process reviews; 100% review on closed cases; the imposition of work-related policies and procedures more harshly that other co-workers; the denial of acting manager assignments while providing same for less experienced and less qualified co-workers. all [sic] of which was with malice and reckless indifference to the federally protected rights of plaintiff.
(Doc. 1, ps. 13-14). O'Neill argues that summary judgment is proper because Brown has failed to establish a prima facie case of retaliation and discrimination. The Court agrees with O'Neill.
Again, Brown has failed to offer any evidence that she suffered an adverse employment action or that similarly situated co-workers received more favorable treatment. She cannot prove that as a result of the personnel decisions, she suffered an adverse employment action under the law. Thus, the Court finds that summary judgment is proper on Count VII. Accordingly, the Court GRANTS O'Neill's motion for summary judgment on Count VII.
D. Counts XII and XIII
In Counts XII and XIII (the claims under the Privacy Act), Brown alleges that Swain, without her consent "willfully and maliciously unlawfully disclosed contents of Plaintiff's EEO complaints to Plaintiff's co-workers and other unidentified parties who were not entitled to receive it." (Doc. 1, p. 17). She also alleges that Defendants "did not keep accurate accounting of the date, nature, and purpose of each disclosure of Plaintiff's records and the name and address of the person or agency to whom the disclosures were made." (Doc. 1, p. 18). O'Neill contends that summary judgment is proper because there is no evidence that the agency disclosure was of "records" from a "system of records" and because Brown has failed to prove an intentional violation or any damages from any alleged violations of the Privacy Act. Because the Court concludes that there is no evidence of improper disclosure, the Court grants summary judgment on Counts XII and XIII.
The record reveals the following facts in relation to Brown's Privacy Act claims. Brown contends that Swain improperly disclosed the contents of her EEO file to Cheryl Pagan and Karen Hudgins. Brown admits that she does not know when or which contents of her EEO file were disclosed. (Brown Depo, p. 242, lines 6-7, 19-21). Brown further admits that she did not witness any of the alleged disclosures (Brown Deposition, p. 254, lines 24-25). In fact, Brown first learned of the alleged disclosures from Pagan while attending an IRS section 1203 training class in Springfield, Illinois in January 1999. (Brown Deposition, p. 245, lines 1-7).
When asked when the alleged disclosures were made, Brown responded: "The disclosures to Karen, Cheryl and Victor? They would be in a better position to answer that question." (Brown Deposition, p 242, lines 6-7 ). When asked to describe the items that were disclosed, Brown responded: "That would be better served as to each of these individuals, I believe. You are asking me to speculate." (Brown Deposition, p. 242, lines 19-21 ).
Pagan testified that she never saw an EEO file and that she physically did not see the contents of Brown's EEO file. (Pagan Deposition, p. 84, lines 20-21). Pagan stated that she does not have any knowledge of what was in the pink envelope that Swain placed on her desk because she did not open the envelope. (Pagan Deposition, p. 84, lines 24-25; p. 86 lines1-25). Swain did not tell Pagan what the questions were in the envelope nor did she tell Pagan what responses were given to the questions alleged to be in the envelope. (Pagan Deposition, p. 85, lines 3-11).
Brown further alleges that Swain also disclosed the contents of her EEO file to Hudgins. Hudgins maintains that Swain disclosed some of Brown's EEO file to her but not the entire file. (Doc. 60, Exhibit D, ¶ 4). During her deposition, Hudgins testified that she does not know whether or not the document she saw was part of an EEO file, but that she felt that it was related to an EEO file. (Hudgins Deposition p. 34, lines 12-21). In fact, Hudgins only remembers seeing one piece of paper. (Hudgins Deposition, p. 36, lines 11-13). She remembers seeing something about Swain flirting with a power of an attorney during an audit. (Hugdins Deposition, p. 38 lines, 1-9). Hudgins does not have any direct knowledge of whether the paper she saw was part of an EEO filed because she does not know what is in an EEO file. (Hudgins Deposition, p. 40 lines 4-5).
Hudgins only assumes that what Swain shared with her was related to an EEO file. (Hudgins Deposition, ps. 34-40).
In December 1996, Swain was Brown's manager. Two times during December 1996, Swain met with Brown and a representative of a tax payer who was being audited by Brown. As a result of these meetings, Swain prepared a Performance Appraisal or a Job Visit ("JV") report. Brown received this JV report on January 1997 (Doc. 60, Exhibit F). In response to Swain's JV report, Brown submitted to Swain a five page document entitled "Response to Evaluation for On the Job Visits" (Doc. 60, Exhibit G). On page 5 of her response, Brown wrote "I went to enquire [sic] if additional information was needed and encountered Mrs. Swain stroking Mr. U----'s back." (Doc. 60, Exhibit G). Upon receiving Brown's JV response, Swain called her immediate supervisor, Featherstone, and informed her of Brown's JV response and then faxed Featherstone a copy because Brown implied that Swain engaged in inappropriate contact with the power of attorney. (Doc. 60, Exhibit H).
Subsequently, Featherstone called Swain and told her that Brown's JV response should be removed from Brown's Employee Performance File ("EPF") and returned to Brown. (Doc. 60, Exhibit H). Featherstone followed this verbal instruction to Swain in a written memorandum addressed to Brown through the manager of the exam group. (Doc. 60, Exhibit H). The last sentence of the memorandum stated that Brown's JV response would not be made part of her EPF file. (Doc. 60, Exhibit H). Swain returned to Brown her JV response. (Doc. 60, Exhibit H).
Sometime in 1997, an EEO investigator approached Swain and presented her with Brown's affidavit and asked her to respond to it. (Doc. 60, Exhibit J). This was the only portion of Brown's EEO file that Swain saw; it did not contain any references to Swain's alleged inappropriate conduct with the tax payer representative. (Doc. 60, Exhibits H K). Then in mid-1999, Swain was investigated by the Treasury Inspector General for Tax Administration based on the allegation that she had disclosed EEO related documents involving Brown to Pagan and Hudgins. (Doc. 60, Exhibit H).
The Privacy Act provides that "[n]o 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. . . ." 5 U.S.C. § 552a(b). To survive a summary judgment motion on a claim for unlawful disclosure under 5 U.S.C. § 552a(g)(1)(D), a plaintiff must advance evidence to support a finding of four necessary elements: (1) the information is covered by the Act as a "record" contained in a "system of records"; (2) the agency "disclose[d]" the information; (3) the disclosure had an "adverse effect" on the plaintiff; and (4) the disclosure was "willful or intentional." Quinn v. Stone, 978 F.2d 126, 131 (3rd Cir. 1993); Gowan v. U.S. Department of Air Force, 148 F.3d 1182 (10th Cir. 1998).
Under the Privacy Act, a "record" is defined as:
any item, collection, or grouping of information about an individual that is maintained by an agency, including but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a voice print or a photograph.5 U.S.C. § 552a(a)(4). The definition of a "system of records" under the Act is:
A group of records under the control of the 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).
The Court finds that Brown has not advanced any evidence to support a claim of improper disclosure. Specifically, she has not shown that the information that was disclosed was a "record" from a "system of records." The information that Swain allegedly disclosed was obtained independently when Brown decided to make an allegation against Swain in a memorandum directed specifically to Swain. As the JV Response was not made a part of Brown's EEO file, it was never in a system of records. The single alleged disclosure to Hudgins relates to an issue in which Brown complained about physical contact between Swain and a representative of a tax payer during an audit with Brown. The only alleged disclosure relates to a matter that Swain had personal knowledge of outside a "system of records." Moreover, Pagan never saw any records and Brown has no direct knowledge of the alleged disclosures. The single piece of paper that Hudgins saw cannot be connected to any "system of records" in Brown's EEO file. Thus, the Court concludes that there are no genuine issues of material fact regarding a violation of the Privacy Act. Therefore, summary judgment is proper on Counts XII and XIII of Brown's complaint.
VII. Conclusion
Accordingly, the Court GRANTS Defendants' motion to dismiss Counts VIII and XIV and for partial summary judgment on Counts XII and XIII (Doc. 53) and Defendants' motion to dismiss Counts I, II and III and for partial summary judgment on Counts IV, VI and VII (Doc. 76). The Court DISMISSES with prejudice Counts I, II, III, VIII and XIV of Brown's complaint and DISMISSES with prejudice Featherstone, Swain and Morley as Defendants in this matter. Further, the Court DIRECTS the Clerk of the Court to enter judgment in favor of Defendant O'Neill and against Robbyn Brown on Counts IV, VI, VII, XII and XIII. Counts V, IX, X and XI remain for trial. The Court SETS the Final Pretrial Conference for October 5, 2001 at 2:00 p.m.
IT IS SO ORDERED.