Opinion
Civ. Action No. 03-2617 (EGS).
March 16, 2005
ORDER
Plaintiff Keith Lucas, an employee of the U.S. Small Business Administration ("SBA" or "the Agency"), brings this case under the Privacy Act of 1974, 5 U.S.C. § 552a, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended. In Counts 1-4, plaintiff claims that the Agency's disclosure of his Official Personnel Folder ("OPF") to an Agency employee outside plaintiff's chain-of-command violated his rights under the Privacy Act and resulted in plaintiff's non-selection for an Asset Marketing Specialist position in favor of a lessqualified applicant. In Counts 5 and 6, plaintiff alleges violations of Title VII, claiming that the disclosure of his OPF and the Agency's 2002 fiscal year performance ratings process subjected plaintiff to unlawful discriminatory treatment and retaliation.
Defendants have moved for summary judgment on Counts 1-4 and have moved to dismiss, or in the alternative, for summary judgment on Counts 5 and 6. Defendants claim that the review of Mr. Lucas's file was undertaken in the course of an internal investigation of a third party's complaint, and therefore was permitted under the "need to know" exception to the Privacy Act. See Defs.' Mem. at 13. Furthermore, defendants argue that neither the disclosure of plaintiff's OPF, nor the process by which the agency gave plaintiff an interim performance rating affected a term or condition of Mr. Lucas's employment, which is an essential element of a Title VII claim. See id. At 23.
After careful consideration of defendants' motion, the responses and replies thereto, and for the reasons discussed in open court on March 8, 2005, the Court is persuaded that plaintiff has not adequately refuted defendants' convincing arguments for dismissal of plaintiff's Privacy Act claims. Accordingly, it is hereby
ORDERED that Counts I-IV of plaintiff's Amended Complaint are DISMISSED WITHOUT PREJUDICE to the filing of a motion for reconsideration for good cause with points and authorities in support by no later than April 11, 2005; and it is
FURTHER ORDERED that plaintiff shall file a Second Amended Complaint stating with precision and clarity any remaining Title VII claims that he may have against the Agency by no later than April 11, 2005; and it is
FURTHER ORDERED that defendants' responsibility to file a responsive pleading to plaintiff's Second Amended Complaint is hereby excused until further Order of the Court; and it is
FURTHER ORDERED that a status hearing is scheduled in this matter on May 11, 2005 at 12:00 p.m.
IT IS SO ORDERED.