Opinion
CASE NO. 07-CV-1010 W (JMA).
July 21, 2008
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS/MOTION FOR SUMMARY JUDGMENT (Doc. No. 35)
On May 16, 2008 Plaintiff Mauricio Chamat ("Plaintiff"), proceeding pro se, filed a First Amended Complaint ("FAC") against Defendant Henry M. Paulson, Jr., Secretary, Department of the Treasury ("Defendant") alleging discrimination, harassment, and termination based on national origin, race, and age. (Doc. No. 31.) The FAC also contains allegations which, when viewed most favorably to Plaintiff, claim federal Privacy Act, HIPAA, and labor violations as well as common law tort claims for libel and defamation. ( Id.) Pending before the Court is Defendant's motion to dismiss, or in the alternative, motion for summary judgment. (Doc. No. 35.) The Court takes the matter under submission and without oral argument. See S.D. Cal. Civ. R. 7.1(d)(1). For the following reasons, the Court GRANTS Defendant's motion for summary judgment, DENIES certain claims as listed below, and DISMISSES Plaintiff's FAC.
I. BACKGROUND
Plaintiff Mauricio Chamat is a fifty year-old Hispanic male of Columbian national origin. ( Def.'s Mot. Ex. 12, at 21.) Plaintiff brings this employment suit against the United States Government ("Government"), represented here by Defendant Henry M. Paulson, Jr., Secretary, Department of the Treasury.
On January 24, 2005 the Internal Revenue Service ("IRS") hired Plaintiff as a Revenue Agent ("RA") trainee. ( Id.) Trainees are required to attend and pass at least two classroom training regimens referred to as "IBT1" and "IBT2", respectively. ( Def.'s Mot. Ex. 2, 2:58-3:66.) Trainees must receive a 70% grade or better to "pass" each IBT classroom session and advance to the next training. ( Id. 3:68-74.) Each IBT classroom training session is followed by "on the job" training (e.g., "OJT1" and "OJT2"). The OJT training is designed to emphasize anything the trainee struggled with during the preceding IBT session. ( Id. 2:58-3:66.) Like all other trainees, Plaintiff's employment was subject to a one-year probationary period, in which failure to perform his job adequately would subject him to immediate termination. See 5 C.F.R. §§ 315.804, 315.803; Internal Revenue Manual § 6.300.1.15.1-16.1.
available at http://www.irs.gov/irm/part6/ch04s0l.html#d0e4504
Plaintiff's IBT1 performance report indicates that he got off to a promising start. ( Def.'s Mot. Ex. 11, 221.) Plaintiff passed 82% of his tested objectives and was recommended for "average" supervision. ( Id.) Plaintiffs subsequent OJT1 report, however, indicates that Plaintiff had trouble managing his workload. ( Def.'s Mot. Ex. 11, 222.) Although Plaintiff advanced to the IBT2 training segment, following his OJT1 training the IRS put Plaintiff on "maximum" supervision to help him catch up. ( Id.)
Plaintiff's IBT2 training went less well. ( Def.'s Mot. Ex. 6.) Although Plaintiff displayed a good attitude, his IBT2 report indicates that he only passed 60% of the tested objectives and that he had trouble grasping certain areas of tax law. ( Id.) Although Plaintiff's superiors counseled him several times about his performance, on June 29, 2005 Plaintiff's "Mid-Year Appraisal" showed him failing three Critical Job Elements: (1) Customer Satisfaction-Knowledge; (2) Customer Satisfaction-Application; and (3) Business Results-Efficiency. ( Def.'s Mot. Ex. 9.) In an August 3, 2005 letter, the Government terminated Plaintiffs employment effective August 5, 2005, citing poor performance as the reason for termination. ( Def.'s Mot. Ex. 10.)
On August 8, 2005 Plaintiff initiated an Equal Employment Opportunity ("EEO") complaint by seeking EEO counseling within the Treasury Department. ( Def.'s Mot. Ex. 11.) On September 29, 2005, following counseling, Plaintiff filed a formal EEO complaint against the IRS alleging race, national origin, and age discrimination. ( Def.'s Mot. Ex. 12.) On July 14, 2006, after a full investigation, the IRS denied Plaintiff's claims in a Final Agency Decision ("FAD"). On March 19, 2007, after Plaintiff appealed the FAD, the Equal Employment Opportunity Commission Office of Federal Operations ("OFO") affirmed the FAD's holding. ( Def.'s Mot. Ex. 17.)
On June 4, 2007 Plaintiff commenced this action against Defendant alleging retaliation and discrimination based on race, age, and national origin, as well as claims that could be conceivably construed as Privacy Act or HIPPA or tort law violations. (Doc. No. 1.) On May 13, 2008 the Court granted the parties' joint motion to amend the pleadings. (Doc. No. 30.) On May 16, 2008 Plaintiff filed his FAC, the operative pleading in this action. (Doc. No. 31.) Comparing the complaint and FAC in the light most favorable to Plaintiff, the Court surmises that Plaintiff has dropped his "retaliation" claim and added allegations regarding an administrative investigation and violations of laws protecting federal collective bargaining rights. ( See Doc. Nos. 1, 29, 31.) Otherwise, the FAC is nearly identical to the Complaint in all respects.
On June 2, 2008 the Government moved for summary judgment or, in the alternative, moved to dismiss Plaintiffs FAC. (Doc. Nos. 34, 35.) On June 20, 2008 Plaintiff opposed the Government's motion. (Doc. No. 37.) On June 30, 2008 the Government submitted its Reply. (Doc. No. 38.) Because the bulk of Plaintiff's claims and allegations have remained unchanged from the start of litigation through discovery, the Court grants summary judgment on the claims where the parties have had an opportunity to fully develop the evidence. Regarding the federal collective bargaining claims, which are recent additions to Plaintiff's suit, the Court dismisses them without prejudice under Federal Rule of Civil Procedure 12(b)(6).
Although Defendant answered the original complaint, Defendant's instant motion to dismiss/motion for summary judgment is Defendant's first response to Plaintiffs FAC. Therefore, dismissal is proper under Federal Rule of Civil Procedure 12(b)(6) rather than Rule 12(c).
II. LEGAL STANDARD
A. Rule 56: Summary Judgment
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case.Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986);Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact.is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
"The district court may limit its review to the documents submitted for the purpose of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). Therefore, the court is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) (citing Anderson, 477 U.S. at 252) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient."). Rather, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)).
When making this determination, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he [or she] is ruling on a motion for summary judgment." Anderson, 477 U.S. at 255.
Rule 56(d) provides for partial summary judgment. See Fed.R.Civ.P. 56(d) (" [T]he court . . . shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted."). Under Rule 56(d), the court may grant summary judgment on less than the non-moving party's whole claim. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313 F.3d 385, 391 (7th Cir. 2002) (Posner, J.). Partial summary judgment is a mechanism through which the Court deems certain issues established before trial. Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n. 3 (9th Cir. 1981) (quoting 6 Moore's Federal Practice ¶ 56.20 (3.-2) (2d ed. 1976)). "The procedure was intended to avoid a useless trial of facts and issues over which there was really never any controversy and which would tend to confuse and complicate a lawsuit." Id.
B. Rule 12(b)(6): Motion to Dismiss for Failure to State a Claim
The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, "even if doubtful in fact," are assumed to be true.Id. The court must assume the truth of all factual allegations and must "construe them in the light most favorable to the nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996).
As the Supreme Court recently explained, "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the `grounds' of his `entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1964-65. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory.Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).
III. DISCUSSION
As a threshold matter, several issues make the instant motion difficult from the Court's perspective. First, Plaintiff appears pro se and, while he does an admirable job navigating the litigation process, his FAC does not parse his allegations into discreet causes of action. Likewise, his opposition brief mostly reiterates his allegations and contains no legal analysis. Thus, the Court views Plaintiffs FAC generously, and reviews all claims which could reasonably be alleged.
Second, as previously mentioned, although Plaintiff amended his complaint somewhat recently, the bulk of his claims and allegations have remained unchanged from the start of litigation. As both parties have had ample time to propound discovery, the Court grants summary judgment on the claims that the parties have had an opportunity to investigate. Regarding the federal labor union claims, which are recent additions to Plaintiff's suit, the Court dismisses them without prejudice under Federal Rule of Civil Procedure 12(b)(6).
A. The Government Had Legitimate Reasons For Terminating Plaintiffs Employment and Plaintiff Has Not Shown That These Reasons Were a Pretext For Disparate Treatment Based on Race, National Origin, or Age.
The Government argues that summary judgment is appropriate because Plaintiff was not objectively qualified for the position of RA and thus cannot establish a prima facie case of race, national origin, or age discrimination. ( Def.'s Mot. 3-5.) Basically, the Government argues that it had legitimate reasons to terminate Plaintiffs employment. ( Id.)
Plaintiff, in response, does not contest the fact that he failed to meet certain objective job qualifications. ( Pl.'s Opp'n 6; Ex. 5 issue 2.) Instead, Plaintiff takes issue with how the job qualifications were tested and contends that, despite his failing scores, he is well-qualified for the position of Revenue Agent. ( Pl.'s Opp'n 6-11.) Also sprinkled throughout Plaintiffs papers are assertions that he was given mixed instructions and made to feel inferior for underperforming. ( Pl.'s Opp'n 6-11.)
Title VII of the Civil Rights Act prohibits discrimination in federal employment based on race, color, religion, sex and national origin. 42 U.S.C. § 2000e-16. The Age Discrimination in Employment Act ("ADEA") provides that all personnel decisions affecting federal employees who are at least forty (40) years old shall be made free from discrimination based on age. 29 U.S.C. § 633a.
Disparate treatment claims based on race, national origin, and age are all subject to the burden shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Chuang v. University of Cal. Davis, 225 F.3d 1115 (9th Cir. 2000) (usingMcDonnell Douglas framework to analyze Title VII race and national origin discrimination claims); Ritter v. Hughes, 58 F.3d 454, 546 (9th Cir. 1995) (using McDonnell Douglas framework for ADEA age discrimination claim). Under McDonnell Douglas, the employee must first establish a prima facie case of discrimination. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). If he does, the employer has the burden of articulating a legitimate, nondiscriminatory reason for the challenged action. Id. If the employer satisfies this burden, the employee must show that the employer's reason is pretextual. Id. An employee shows pretext by offering evidence, direct or circumstantial, `that a discriminatory reason more likely motivated the employer' to make the challenged employment decision. Davis, 520 F.3d at 1091 (citing Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006)). Alternatively, an employee may offer evidence "that the employer's proffered explanation is unworthy of credence." Id.
Here, giving the pro se Plaintiff every benefit of the doubt, the Court assumes without deciding that Plaintiff has met his prima facie burden of showing disparate treatment. The Government, however, has articulated legitimate, non-discriminatory reasons for terminating him. First, it is undisputed that Plaintiff's IBT2 report dated May 19, 2005 shows him passing only 60% of the objectives — less than the 70% required. ( Def.'s Mot. Ex.6.) At the time, Plaintiff's lead instructor did not recommend advancing Plaintiff to the next training segment, and the agency placed Plaintiff on "maximum supervision" in an attempt to bring him up to speed. ( Id.) Second, Plaintiff's Mid-Year Appraisal dated June 24, 2005 indicates that Plaintiff failed three out of five Critical Job Elements and had trouble grasping certain important areas of tax law. ( Def.'s Mot. Ex. 9.) Nowhere does Plaintiff dispute that he failed to measure up to the Government's objective criteria for remaining in the IRS's employ. As Plaintiff was still within his probationary period, the Government was within its rights to legitimately terminate him for poor performance.
For the same reasons, it is doubtful that Plaintiff has even met his prima facie burden of showing that he was objectively qualified for the RA position. See Davis, 520 F.3d at 1089 (laying out factors for prima facie case, the second of which is a showing that an employee was qualified for his position); see also Lynn v. Regents of University of California, 656 F.2d 1337, 1342 (9th Cir. 1981) (holding that an employee is qualified for a position where he meets the requisite objective criteria).
Plaintiff also claims that any argument that he was unqualified to be an RA is moot, considering that the IRS found him qualified when they offered him the job. ( Pl.'s Opp'n 9; Ex. 10.) This argument, however, ignores the one-year probationary period for new hires and the training benchmarks needed to retain employment. (See Def.'s Mot. Ex. 2 2:58-3:66; 5 C.F.R. §§ 315.804, 315.803.)
Plaintiff provides no facts and only self-serving arguments in attempting to show that the Government's reasons were merely a pretext for racial, national origin, and/or age discrimination. For instance, Plaintiff argues that the IRS's testing methodologies and criteria were flawed in that they discriminated against older people. ( Pl.'s Opp'n 6-7.) Specifically, Plaintiff contends that his age affects his ability to remember and recall large amounts of information required to pass IBT training, but that it is not necessary to memorize information in order to perform RA job tasks. ( Pl.'s Opp'n 6.) How the IRS should test to determine which trainees make suitable RAs, however, is not under the review of this Court. Further, Plaintiff presents no facts for a reasonable jury to conclude that the IRS purposefully tests its RAs in such a way as to discriminate against those over forty. Instead, all undisputed evidence indicates that Plaintiff could not pass the objective criteria needed to become an RA; there is no evidence suggesting that the Government terminated his employment on any basis other than poor performance.
Plaintiff contends that he "will present expert testimony from a Ph.D in Accounting in which the subject test questions will be examined for clarity, accuracy, fairness and educational and pedagogical value." ( Pl.'s Opp'n 7.) Even if this expert testimony were relevant to his cause(s) of action, Plaintiff needs evidence now, not a promise to produce evidence at trial, to defeat a motion for summary judgment.
As with age, Plaintiff produces no evidence to suggest that he was terminated on account of his race or national origin, only baldly concluding that "[t]he real reason for termination was discriminatory in violation of Title VII and ADEA." ( Pl.'s Opp'n 10.) Simply because Plaintiff is a fifty year-old Hispanic of Columbian national origin does not turn his termination for cause into discrimination. Indeed, the record reflects that Plaintiff's reviewers generally liked him and were supportive of his efforts to succeed, but that ultimately he did not possess the objective qualifications to become a RA. (See, e.g., Def.'s Mot. Ex. 2, 4:111-113, 6:163-166; Ex. 5; Ex. 6 4:19-30.) Simply, Plaintiff offers nothing to suggest that race or national origin had anything to do with his termination.
Plaintiff next points to negative comments in some of his evaluations. None of these negative comments, however, reflect any animus towards his race, age, or national origin. Rather, any negative comment is in response to a specific, job-related metric at which Plaintiff failed to succeed. Plaintiff also contends that he was given mixed instructions about prioritizing work. ( Pl.'s Opp'n 7-8.) Even if he did, Plaintiff does not point the Court to any evidence suggesting that his supervisors' allegedly cryptic instructions were merely a smokescreen for disparate treatment based on race, national origin, or age. Because the Court finds no evidence, much less any genuine issues of material fact, concerning Plaintiff's Title VII and ADEA claims, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's disparate treatment claims under Title VII and the ADEA.
B. Plaintiff Has Not Established That He Was Subjected to a Hostile Work Environment Based on a Protected Trait
The Government argues that Plaintiff has presented no evidence that he was subjected to the type of abuse necessary to support a hostile work environment claim based on race, national origin, or anything else. ( Def.'s Mot. 5-6.) Plaintiff contends, in response, that his performance reports were conducted in a way to make Plaintiff feel inferior, and that he was once told "not to speak Spanish" in the general work area. ( Pl.'s Opp'n 4-6, 7-9.)
Whether an environment is "abusive" or "hostile" can be determined only by looking at all the circumstances. Harris v. Forklift Sys., 510 U.S. 517, 523 (1993). Factors include: (1) the frequency of the conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance. Id. To prevail in a hostile work environment claim premised on race and/or national origin, a plaintiff must show: (1) that he was subjected to verbal or physical conduct based on his race or national origin; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment. Galdemez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 2005). To satisfy the third element, a plaintiff must show that his work environment was both subjectively and objectively hostile. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004). Taken together, the legal standard filters out complaints centering on the ordinary tribulations of the workplace. Faragher v. City of Boca Raton, 524 US. 775, 788 (1998).
Here, the only allegations that could possibly support a hostile work environment claim are Plaintiff's statements that his performance evaluations were conducted in a way to make him feel inferior and that he was once told not to speak Spanish in the workplace. Like his disparate treatment claims, however, Plaintiff directs the Court to no evidence suggesting that his negative performance evaluations had anything to do with his race or national origin. Although the reports critiqued Plaintiffs job performance, any negative comments were properly confined to his inability to do his tasks in an objectively satisfactory manner. As for Plaintiff's assertion that he was scolded for speaking Spanish in the general work area, Plaintiff alleges that this only happened once. No matter what Plaintiff might subjectively believe, no reasonable jury could find that the request was frequent or pervasive or severe enough to be objectively actionable. Accordingly, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's hostile work environment claim. C. Plaintiff's Tort Claims Are Either Unexhausted or Barred by Sovereign Immunity
The Government argues that Plaintiff has not alleged exhaustion of any potential tort claims that the FAC might raise, and that, regardless, any intentional torts are barred by sovereign immunity. ( Def.'s Mot. 7-9.) Plaintiff contends, in response, that the Government has been on notice of his claims due to his EEOC "right to sue" letter. ( Pl.'s Opp'n 2.) As noted, Plaintiff's FAC merely refers in passing to tortious activities and does not parse out his allegations into distinct tort claims.
The doctrine of sovereign immunity bars actions against the United States except where it clearly and explicitly consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). The Federal Tort Claims Act ("FTCA") waives the United States' immunity for certain torts. 28 U.S.C. §§ 2671 et. seq. Under the FTCA, tort claims relating to the acts of federal employees taken in the course of their employment may only be brought against the United States of America. 28 U.S.C. § 2679(a), (b), (d). Federal employees retain broad immunity from suit under state tort law, and an FTCA action against the Government is the exclusive remedy. United States v. Smith, 499 U.S. 160, 163 (1991).
The FTCA also requires that plaintiffs first exhaust administrative remedies by presenting claims to the appropriate federal agency. 28 U.S.C. § 2675(a). This claim requirement is jurisdictional in nature and cannot be waived. Burns v. United States, 764 F.2d 722, 723 (9th Cir. 1985). While the FTCA provides an avenue for redress for certain torts, the Government still retains sovereign immunity for intentional torts like defamation. 28 U.S.C. § 2680(h).
Here, Plaintiff has not alleged that he complied with FTCA requirements before filing his FAC and does not argue that his intentional misrepresentation or invasion of privacy claims remain valid despite 28 U.S.C. § 2680's retention of sovereign immunity for most intentional torts. Additionally, Plaintiff has named Henry Paulson, Jr., as the sole defendant, and not the United States of America. Although Plaintiff argues that the Government was "on notice" of his tort claims ( Pl.'s Opp'n 2), the law is clear that mere Government awareness does not satisfy the statutory claim requirement. See, e.g., Brady v. United States, 211 F.3d 499, 503 (9th Cir. 2000) (holding that dismissed FTCA suit did not satisfy FTCA claim requirement); Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985) (holding letter to Senator, forwarded to Agency, insufficient). Rather, an actual agency claim is necessary to prevent an unnecessary burdening of the courts.Brady, 211 F.3d at 503. Because Plaintiff does not argue or allege that he complied with the FTCA claim presentation requirement, and because his intentional torts are barred by sovereign immunity, the Court GRANTS Defendant's motion and DENIES any and all tort claims Plaintiff's FAC potentially raises.
D. Plaintiff Cannot State a Viable HIPAA or Privacy Act Claim
Plaintiff's FAC alleges that at the time he was terminated, his manager illegally searched his personal belongings, including his tax returns and medical records. (FAC 2.) Defendant argues that neither of Plaintiff's references to HIPAA or the Privacy Act can support a claim for these purported violations. ( Def.'s Mot. 9.) Plaintiff does not counter this argument, but argues that union representation would have prevented these supposed transgressions. ( Pl.'s Opp'n 3.)
The Privacy Act provides that district courts have subject matter jurisdiction over an individual's civil action against an agency whenever an agency:
(A) makes a determination under 5 U.S.C. § 552a(d)(3) not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection; (B) refuses to comply with an individual request under § 552a(d)(1); (C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or (D) fails to comply with any other provision of this section, or any rule promulgated there under, in such a way as to have an adverse effect on an individual . . .Logan v. Dep't of Veterans Affairs, 357 F. Supp. 2d 149, 153 (D.D.C. 2004). To pursue a claim for injunctive relief and monetary damages based on improper disclosure in violation of the Privacy Act, a plaintiff must prove four elements: (1) the disclosed information is a "record" contained within a "system of records"; (2) the agency improperly disclosed the information; (3) the disclosure was willful or intentional; and (4) the disclosure adversely affected the plaintiff. Logan, 357 F. Supp. 2d at 154.
HIPAA provides for both civil and criminal penalties to be imposed upon individuals who improperly handle or disclose individually identifiable health information. Id. at 155 (citing 42 U.S.C. §§ 1320d-5-d-6). However, the law specifically indicates that the Secretary of Health and Human Services shall pursue the action against an alleged offender, not a private individual. Logan, 357 F. Supp. 2d at 155. Therefore, causes of action brought by private individuals must be dismissed. Id.
Here, Plaintiff's claims that his manager improperly searched his tax returns and medical records are not actionable under the Privacy Act or HIPAA. Under the Privacy Act, Plaintiff has not shown that either his tax returns or medical records were "records" contained within a "system of records." Nor has Plaintiff alleged that the disclosure adversely affected him. As for HIPAA, the law is clear that the Act creates neither an express nor implied private cause of action. See O'Donnell v. Blue Cross Blue Shield of Wyo., 173 F. Supp. 2d 1176, 1179-80 (D. Wyo. 2001). Because Plaintiff's allegations concerning his manager's actions are not legally actionable, the Court GRANTS Defendant's motion and DENIES any and all claims relating to the Privacy Act or HIPAA.
E. Plaintiff's Union Grievance Claims Are Unexhausted or Lack Jurisdiction
Defendant argues that the union claims first raised in Plaintiffs FAC are unexhausted and must be dismissed. ( Def.'s Mot. 9.) Defendant also argues that Plaintiff's claim that he was entitled to union representation at his termination meeting lacks jurisdiction because such claims are subject to the exclusive jurisdiction of the Federal Labor Relations Authority. ( Def.'s Reply 3.) Plaintiffs opposition simply expands on his earlier allegations concerning the violation of his collective bargaining rights. ( Pl.'s Opp'n 2-4.)
Courts have jurisdiction to enforce collective bargaining agreements; but where the contract provides grievance and arbitration procedures, those procedures must first be exhausted and courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 37 (1987).
In this case, nowhere does Plaintiff allege that he exhausted his union grievances, argue that his union contract does not provide grievance and arbitration procedures with which to enforce his collective bargaining rights, or rebut Defendant's argument that the FLRA entertains exclusive jurisdiction over his claims. Accordingly, the Court GRANTS Defendant's motion and DISMISSES Plaintiffs collective bargaining claims. H. Plaintiff is Not Entitled To Substantive Relief Based on the Delay in the Agency Investigation
Should Plaintiff pursue his union claims again, the Court expects Defendant to do a better job researching and presenting the relevant law.
Defendant argues that Plaintiff is not entitled to relief on the basis of the Agency's untimely investigation of Plaintiffs EEO complaint. ( Def.'s Mot. 10.) Plaintiff's opposition does not contest this. As these issues have already been decided, the Court GRANTS Defendant's motion for summary judgment on this issue for the same reasons outlined in the Court's March 18, 2008 Order Denying Plaintiff's Motion Requesting Job Reinstatement and Back Pay, incorporated herein by reference. (Doc. No. 26.) I. Plaintiff's Claim That He Was Not Paid For His Accrued Leave Lacks Support
Defendant argues that Plaintiff was compensated for all accrued leave, and to the extent that he was not, Plaintiff provides no authority which allows the Court to assume jurisdiction over such a personnel matter. ( Def.'s Mot. 10.) Plaintiffs opposition does not contest this. Because the record suggests that Plaintiff was in fact compensated for all due time ( Def.'s Mot. Ex. 20), and Plaintiff offers no evidence to the contrary, the Court GRANTS Defendant's motion and DENIES Plaintiff's claim for accrued leave.
IV. CONCLUSION
Even giving Plaintiff every benefit of the doubt, Plaintiff has not presented evidence suggesting that there are any genuine issues of material fact sufficient to overcome a motion for summary judgment. Indeed, all the evidence suggests that, while Plaintiff was well-meaning, he was objectively unqualified to be a Revenue Agent. Thus, the Government was within its rights to terminate Plaintiff during his probationary period. Plaintiff has failed to present any specific facts that his race, age, national origin, and an isolated workplace incident had anything to do with it.
For the foregoing reasons, the Court GRANTS Defendant's motion for summary judgment and DENIES Plaintiff's disparate treatment, hostile work environment, tort, Privacy Act, HIPAA, delayed agency investigation, and accrued leave claims. Because Plaintiff only recently amended his complaint to include the labor union claims, the Court GRANTS Defendant's motion to dismiss and DISMISSES Plaintiff's labor union claims. Should Plaintiff wish to amend his complaint and fix the deficiencies noted above, he may do so by August 18, 2008 . Plaintiff is on notice, however, that failure to adequately plead a claim or legally oppose a future motion may result in a dismissal with prejudice.