United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT.
NO. 77] AND GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [DKT. NO. 59]
M. KEELEY, UNITED STATES DISTRICT JUDGE.
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
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).
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. 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).
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.
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.
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. 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.
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).
February 28, 2017, by counsel, Strong filed an amended
complaint (Dkt. No. 49),  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).
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.
STANDARDS OF REVIEW
Review of the R&R
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).
Motion for Summary Judgment
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).
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.
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).
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 ...