Strong v. Brennan

          MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

          IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is a motion for judgment on the pleadings or, alternatively, for summary judgment filed by the defendant, Megan J. Brennan, Postmaster General (“Postmaster General”) (Dkt. No. 59). Also pending is the report and recommendation (“R&R”) of the Honorable Michael J. Aloi, United States Magistrate Judge, recommending that the Court grant the Postmaster General's motion for summary judgment (Dkt. No. 77). For the reasons that follow, the Court ADOPTS the R&R and DISMISSES the case WITH PREJUDICE.

         I. BACKGROUND

         A. Factual Background

         On May 2, 2015, the plaintiff, Olley Strong (“Strong”), an African American, was hired by the United States Postal Service (“USPS”) as a Mail Processing Clerk at the agency's Eastpointe facility in Clarksburg, West Virginia (Dkt. No. 60-1 at 11-12; 15). On August 17, 2015, approximately three months after he began working at the facility, Strong tendered his resignation to USPS. Id. at 38-40; Dkt. No. 1-1 at 2. The reason stated on Strong's resignation form was that he had found another job (Dkt. No. 60-1 at 38, 124). In this lawsuit, Strong contends that real reason for his resignation was “the harassing conduct of the defendant and its agents and employees, whose actions were racially motivated” (Dkt. No. 49 at 4). See also Part III.B, infra. It is nonetheless undisputed that, approximately one week after resigning from USPS, Strong began working as a salesman at a car dealership located in Morgantown, West Virginia (Dkt. No. 61 at 39-40; 53).

         On August 17, 2015, the same day Strong resigned from USPS, the agency's Human Resources Office completed his then-pending background check, which revealed that Strong had a criminal record that he had previously failed to disclose.^[1] Because Strong had already resigned, USPS took no formal action. According to the amended complaint, however, a former co-worker later informed Strong that, shortly after his resignation, Clarksburg Postmaster Eric Grossa (“PM Grossa”) told several USPS employees that Strong had been fired for having a criminal record. Strong alleges that the co-worker also informed him that PM Grossa had shared Strong's private personnel file, including records obtained during his criminal background check, with other employees on multiple occasions. PM Grossa has denied these allegations (Dkt. No. 1-1 at 2).

         B. Procedural Background

         Based on alleged discriminatory conduct by PM Grossa, and concerned for his reputation, Strong filed an Equal Employment Opportunity (“EEO”) complaint in December 2015, in which he alleged that USPS had discriminated against him on the basis of his race (Dkt. No. 1-1 at 1). Specifically, Strong's complaint alleged that:

(1) On May 23, 2015, he became aware that his car bumper had been hit in the employee parking lot and management did not properly investigate it;

(2) In August 2015, and on other unspecified occasions, PM Grossa told him that he was working too slowly and threatened to fire him; and

(3) On or around August 19, 2015, after [Strong] had resigned from his position at the Agency, he learned that PM Grossa had allegedly disclosed his record to his former coworkers.

Id. at 1-2. On January 5, 2016, USPS dismissed Strong's claim that management had not properly investigated the damage to his car as untimely, because he had failed to initiate contact with an EEOC Counselor within forty-five (45) days, as required by EEOC regulations. Id. at 2. It further dismissed Strong's remaining claims for failure to state cognizable claims. Id. at 3.

         On appeal, the EEOC affirmed the dismissal of Strong's complaint. Id. In a decision issued on April 19, 2016, the EEOC found that Strong's first claim had been properly dismissed for untimely contact with an EEO Counselor. As to Strong's second and third claims, the EEOC agreed that he had failed to state a claim, because he had not shown that he suffered harm or loss with respect to a term, condition or privilege of employment for which there is a remedy. Id. It found that, to the extent Strong was claiming a hostile work environment, the events described, even if proven to be true, “would not indicate that [he] had been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of [his] employment.” Id. Specifically, the EEOC found that Strong's allegation that PM Grossa threatened to fire him and told him that he was working too slowly represented only one instance of alleged harassment. Id.

         Finally, as to Strong's third claim, the EEOC observed that the alleged discriminatory act, i.e., PM Grossa's disclosure of his criminal record, purportedly “occurred after [Strong] left the Agency and found employment elsewhere, ” and, therefore, could not have impacted the terms and conditions of Strong's former employment with USPS.^[2] It further noted that the privacy-related concerns raised in Strong's third claim implicate the federal Privacy Act, 5 U.S.C. § 552(g)(1), which provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of record. Accordingly, because jurisdiction over alleged violations of the Privacy Act rests exclusively with the federal courts, the EEOC concluded that it lacked jurisdiction to consider the claim.

         On June 27, 2016, Strong, filed a pro se complaint in this Court against the Postmaster General and USPS employees Eric Grossa, James Smith, and Mark Cottrill (Dkt. No. 1). Pursuant to 28 U.S.C. § 636 and LR PL P 2, the Court referred the case to Magistrate Judge Aloi for initial screening and a report and recommendation (Dkt. No. 4). On December 15, 2016, the Postmaster General was substituted as the sole defendant in the case (Dkt. No. 42).

         On February 28, 2017, by counsel, Strong filed an amended complaint (Dkt. No. 49), ^[3] asserting claims for (1) violations of the Privacy Act of 1974, 5 U.S.C. § 522(a) (“Privacy Act” or “the Act”), (2) constructive discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-1 et seq. (“Title VII”), and (3) intentional infliction of emotional distress (“IIED”). Id. at 6-9. Following discovery, the Postmaster General moved for judgment on the pleadings or, alternatively, for summary judgment (Dkt. No. 59).

         Now pending is Magistrate Judge Aloi's R&R recommending that the Court grant summary judgment on all counts (Dkt. No. 77). Strong objected to this recommendation (Dkt. No. 80), contending that disputes of material fact preclude summary judgment as to his Privacy Act and constructive discharge claims. Id. at 1-2. Strong also objected to the recommendation that his IIED claim is subsumed within the Privacy Act. Id. at 2.

         II. STANDARDS OF REVIEW

         A. Review of the R&R

         “The Court will review de novo any portions of the magistrate judge's Report and Recommendation to which a specific objection is made . . . and the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the [parties do] not object.” Dellacirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold portions of a R&R to which no objection has been made unless they are “clearly erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         B. Motion for Summary Judgment

         Summary judgment is appropriate where the “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the Court reviews all the evidence “in the light most favorable” to the nonmoving party. Walker v. Mod-U-Kraf Homes, L.L.C., 775 F.3d 202, 207 (4th Cir. 2014). The Court must avoid weighing the evidence or determining the truth and limit its inquiry solely to a determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         The moving party bears the initial burden of informing the Court of the basis for the motion and of establishing the nonexistence of genuine issues of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made the necessary showing, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256 (internal quotation marks and citation omitted). The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the evidence must be such that a rational trier of fact could reasonably find for the nonmoving party. Id. at 248-52.

         III. DISCUSSION

         A. Privacy Act

         In Count One of the amended complaint, Strong contends that the defendant violated the Privacy Act by willfully and intentionally disclosing his personnel records, including the results of his criminal background check, to USPS employees (Dkt. No. 49 at 6-7). Strong seeks monetary damages under the Act, alleging that damage to his reputation by the defendant's “wrongful dissemination of his private records” has caused him to “suffer actual financial losses and made it harder for him to earn a living in his subsequent sales positions” (Dkt. Nos. 49 at 5; 61 at 5).

         The Privacy Act prohibits federal agencies from disclosing their records to any person or to another agency. 5 U.S.C. § 552a(b). Section (g)(1)(D) describes an agency's failure to maintain an adequate record on an individual and provides a private cause of action when that person has suffered “an adverse effect” as the result of a disclosure in violation of the Act. 5 U.S.C. § 552a(g)(1)(D); see also Fattahi v. Bureau of Alcohol, Tobacco & Firearms, 186 F.Supp.2d 656, 659 (E.D. Va. 2002), aff'd, 328 F.3d 176 (4th Cir. 2003). Thus, to set forth a viable claim under the ...