Opinion
Case No. 8:99CV152.
December, 2000.
ORDER
This matter is before the Court on defendant's request to file a motion for partial summary judgment (Filing No. 58) out of time and motion for partial summary judgment (Filing No. 56). I have reviewed the record, indices, briefs and relevant law, and I conclude that the request to file the motion out of time should be granted. I further find that the motion for partial summary judgment should be granted.
Facts
Plaintiff Pam Marshall was an employee of the United States Postal Service from September 18, 1995, to May 4, 2000, in the Processing and Distribution Facility located at 1124 Pacific Street in Omaha, Nebraska. (PTO ¶ 1). Plaintiff John Walden has been an employee of the United States Postal Service since April 11, 1987, in the Processing and Distribution Facility located at 1124 Pacific Street. (PTO ¶ 2). William Wagoner is an employee of the United States Postal Service at the same location. (PTO ¶ 4). Pam Marshall during the relevant times herein was legally separated from her husband Keith Marshall. (PTO ¶ 5).
Pam Marshall alleges that on or about March 6 or 7, 1999, Keith Marshall called the Post Office and spoke to Bill Wagoner, one of the postal supervisors. She contends that
Mr. Wagoner disclosed information about her work schedule and that of John Walden to Keith Marshall. She bases this allegation on a phone call she had with Keith Marshall wherein he indicated that he had obtained information about her, and in particular, about the hours she worked and her Family Medical Leave issues. (Pam Marshall taped this phone conversation.) (Exhibit 1 to Depo. of Keith Marshall). However, during the deposition of Keith Marshall, he recanted and indicated that William Wagoner did not give him information regarding Pam Marshall's work schedule. In fact, Keith Marshall indicated that he received the information from his children and from an unidentified source, and with regard to information about John Walden, from Cass County records. (Keith Marshall stated in his deposition that he was not in a position to indicate his source.) William Wagoner's deposition testimony likewise indicates that he did not provide any personal information or work schedule information to Keith Marshall about Pam Marshall or John Walden.
Pam Marshall then filed suit against the United States Postal Service. She alleged a violation of her right to privacy under the Privacy Act, 5 U.S.C. § 552a and violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. The allegations under the Family Medical Leave Act are not part of this motion for partial summary judgment. Pam Marshall requests statutory damages and attorney fees.
Analysis
A. Summary Judgment
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court grants summary judgment 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 judgment as a matter of law. Fed.R.Civ.P. 56(c). The court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter; rather, the court must determine whether a genuine issue exists for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If no rational trier of fact could find for the nonmoving party, then summary judgment is appropriate." McCormack v. Citibank, N.A., 100 F.3d 532, 537 (8th Cir. 1996). The Eighth Circuit has recognized that primarily legal issues and particularly questions of contract interpretation are issues amenable to summary disposition. See, e.g., Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995); Mumford v. Godfried, 52 F.3d 756, 759 (8th Cir. 1995); and Crain v. Board of Police Comm'r, 920 F.2d 1402, 1405-06 (8th Cir. 1990).
If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256; Krenik v. County of LaSueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Privacy Act Claim
A review of the Privacy Act shows that it prohibits any agency from disclosing "any record which is contained in a system of records by any means of communication to any person or to another agency" without written consent of the individual. 5 U.S.C. § 552a (b). The Privacy Act defines a "record" 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 employment history that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or photograph.5 U.S.C. § 552a(a)(4). 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).
The plaintiff has the burden to show that a disclosure was made by the agency. Both parties agree that the plaintiff must show (1) that the information disclosed was a "record" contained in a "system of records"; (2) the agency actually disclosed 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).
Defendant argues that if any information was disclosed, it was not a "record" that was retrieved from an agency system of records. Manuel v. VA Hospital, 857 F.2d 1112, 1119-20 (6th Cir. 1988); Abernethy v. I.R.S., 909 F. Supp. 1562, 1570-71 (N.D.Ga. 1995). The information allegedly obtained from the postal service dealt with hours of work. There is very little evidence, if any, offered by the plaintiff that such information, if disclosed, even meets the definition of a record contained in the system of records. Based on the facts presented in this summary judgment motion, I agree that no information meeting the definition of a "record" was disclosed regarding either plaintiff.
With regard to the second element, the plaintiff contends that William Wagoner disclosed work schedules to Keith Marshall. However, in deposition testimony, Mr. Marshall and Mr. Wagoner both testified that Mr. Wagoner did not disclose any such information to Mr. Marshall. Mr. Wagoner testified that he told Mr. Marshall that John Walden was not a supervisor and possibly told Mr. Marshall that John was on Tour 1. (Wagoner Dep. 12:2-13:8). This minimal information was based on Mr. Marshall's personal knowledge and was not obtained through a system of records as required by the Act. Mr. Marshall specifically testified that he already knew what schedule Pam Marshall worked. (Marshall Dep. 10:11-11:19). He further testified that he obtained the John Walden information from the Cass County Courthouse. (Marshall Dep. 14:19-15:11). In addition, and more importantly, Mr. Marshall testified that Mr. Wagoner did not provide him with the work schedules and employee information for either Pam Marshall or John Walden. (Marshall Dep. 12:23-13:20). Finally, Mr. Marshall testified that no postal employee looked up any information for him on Pam Marshall or John Walden. (Marshall Dep. at 37:7-34:21).
It is clear from this testimony that Keith Marshall was able to obtain information about both Pam Marshall and John Walden from other sources. Plaintiffs offer no additional evidence of any sources of information from the postal service to Keith Marshall. The tape-recorded conversation relied upon by the plaintiffs, now repudiated by the Keith Marshall, is replete with hearsay and lacks foundation. Plaintiffs have not shown how this conversation could be useable and admissible in court, so as to lend any support to the opposition to summary judgment motion. No other evidence is offered by the plaintiffs.
The third element of plaintiffs' prima facie case is a showing of adverse effect that occurred as a result of the disclosure. Plaintiffs have arguably failed to show the required adverse effect, although Pam Marshall alleges that she was afraid. Even if I construe this allegation to be sufficient, she cannot overcome the lack of evidence on her other elements. Plaintiff John Walden has failed to offer any evidence of adverse effect.
The final element requires proof that the actions were "intentional" or "willful." Plaintiff has submitted absolutely no evidence in this regard. Mr. Wagoner knew Mr. Walden only because they had once worked the same shift. Mr. Wagoner had no acquaintance with Pam Marshall. There must be a showing of some egregious behavior before liability will be imposed under the Act. Mount v. USPS, 79 F.3d 531, 533-34 (6th Cir. 1996 ); Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Wisdom v. Dept. of Housing Urban Dev., 713 F.2d 422, 425 (8th Cir. 1983). The plaintiffs have pleaded no facts and offered no evidence that would begin to prove willfulness on this issue. I simply find no evidence that would allow a reasonable jury to conclude such behavior on the part of the agency. At best, the evidence offered is unsubstantiated and speculative.
In conclusion, I find that the plaintiffs have failed to meet their burden of proof in establishing a prima facie case of a violation of the Privacy Act. Consequently, I grant defendant's motion for partial summary judgment.
IT IS THEREFORE ORDERED THAT:
1. Defendant's request for filing a motion for partial summary judgment (Filing No. 58) should be granted; and
2. Defendant's motion for partial summary judgment (Filing No. 56) is granted.