Opinion
Civil Action No. 01-2195 PLF/DAR, Civil Action No. 02-2546 PLF/DAR, Civil Action No. 03-1928 PLF/DAR.
September 22, 2005.
REPORT AND RECOMMENDATION
Defendant's Motion for Summary Judgment (Docket No. 151) and Plaintiff's Motion for Summary Judgment (Docket No. 153) are pending for consideration by the undersigned. Upon consideration of the motions, the memoranda in support thereof and in opposition thereto and the entire record in these consolidated actions, the undersigned recommends, for the reasons set forth herein, that Plaintiff's Motion for Summary Judgment be denied; that Defendant's request for dismissal of Plaintiff's "subsequently filed complaints" be stricken; and that Defendant's Motion for Summary Judgment be granted
See Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Defendant's Memorandum") at 8-14.
I. BACKGROUND
A. Plaintiff's Complaints
Plaintiff was employed as an attorney by the United States Environmental Protection Agency from 1984 until his termination in July, 2000. Plaintiff, in the first of three complaints he filed in these consolidated actions, states that he "is . . . Jewish"; "became permanently disabled due to injuries from toxic exposures while working at EPA headquarter offices during 1988-1989 as a result of EPA's gross negligence"; and filed administrative complaints of discrimination and retaliation on at least 35 occasions from August, 1993 through November, 2000. Complaint and Demand for Jury Trial, Civil Action No. 01-2195 ("Complaint-01"), ¶¶ 3-4, 9. Plaintiff alleges "numerous acts of denial of reasonable accommodations [for his disability] [Claim One][;] disability and religious discrimination [Claims Two and Three][;], hostile work environment [Claim Five][;] retaliation for filing EEO complaints [Claim Four][;] and violations of his right to privacy, in violation of . . . the Privacy Act[.]" [Claim Six]. Id., ¶ 1; see also id., ¶¶ 130-155.
In the second complaint filed in these consolidated actions, Plaintiff alleges "numerous acts of disability discrimination, including denial of reasonable accommodations [Claim One][;] subjection to a hostile work environment [Claim Two][;] and retaliation for filing [EEO] complaints and opposing disability discrimination [Claim Three]." Complaint and Demand for Jury Trial, Civil Action No. 02-2546 ("Complaint-02"), ¶ 1; see also id., ¶¶ 28-45. Plaintiff states that the alleged violations "cover the time from November 15, 1998 through [the filing of the second complaint]." Id., ¶ 3.
In the third complaint, Plaintiff "alleg[es] numerous acts of disability discrimination [Claim Two], including denial of reasonable accommodations [Claim One][;] subjection to a hostile work environment [Claim Four][;] and retaliation for opposing discrimination [Claim Three]." Complaint and Demand for Jury Trial, Civil Action No. 03-1928 ("Complaint-03"), ¶ 1; see also id., ¶¶ 27-47. Plaintiff states that the violations alleged in his third complaint "were committed in connection with the Alternative Workspace . . . office, which was intended to provide reasonable accommodations for [Plaintiff][.]" Id., ¶ 1. Plaintiff further states that the alleged violations "cover the time from December 18, 1997, through [the filing of the third complaint]." Id., ¶ 3.
B. The Remaining Claims
On June 20, 2003, the court (Friedman, J.) referred the two actions which were then pending to the undersigned for management of discovery. See June 20, 2003 Order (Docket No. 54, Civil Action No. 01-2195; Docket No. 41, Civil Action No. 02-2546) at 1. On November 3, 2003, after the third complaint was filed, the court, sua sponte, consolidated the three actions and referred all three to the undersigned for management of all pretrial matters. November 3, 2003 Order (Docket No. 75) at 3.
The discovery period was rife with disputes. See, e.g., Docket Nos. 59-61; July 22, 2003 Minute Entry; Docket Nos. 63-65, 67-71; October 23, 2003 Order (Docket No. 72); Docket Nos. 73, 76, 78-82, 84-86, 88-95; December 18, 2003 Order (Docket No. 96); Docket Nos. 106, 1131-17; June 4, 2004 Order (Docket No. 121); September 14, 2004 Order (Docket No. 130); Docket Nos. 135-136; September 30, 2004 Memorandum Opinion and Order (Docket No. 138); September 30, 2004 Order (Docket No. 139); Docket No. 140.
The discovery dispute which dominated all others, and has significantly altered the scope of the claims which remain for consideration by the court, concerned Plaintiff's medical records: Defendant maintained that Plaintiff had put his physical and mental health in issue, and that he therefore should be compelled to execute authorizations for the release of his medical records, while Plaintiff maintained that the release of his medical records should be subject to a protective order and other limitations. See, e.g., Notice of Filing of Defendant's Response to June 30, 2003 Court Order (Docket No. 59), Exhibit 1 at 2-3, 6-7; Plaintiff's Discovery Status Report (Docket No. 60) at 13.
The dispute regarding Plaintiff's medical records culminated in the entry of an order granting Defendant's motion to strike Plaintiff's allegations concerning his physical and mental condition, and precluding Plaintiff from introducing evidence about his physical and mental condition. December 18, 2003 Order at 2-3; see also September 14, 2004 Order at 2-7. The court denied Plaintiff's motion for reconsideration of the undersigned's December 18, 2003 order. September 30, 2004 Memorandum Opinion and Order at 4. The court also denied Plaintiff's motion for certification for appeal of the court's order denying Plaintiff's motion for reconsideration of the undersigned's December 18, 2003 Order. January 31, 2005 Order (Docket No. 158) at 1-2.
Accordingly, Plaintiff's claims of disability discrimination (Complaint-01, Claim One and Claim Two; Complaint-02, Claim One and Claim Two; Complaint-03, Claim One and Claim Two), and hostile work environment on the basis of his disability (Complaint-01, Claim Four; Complaint-03, Claim Four) are no longer before the court. The claims which remain are Plaintiff's claims of religious discrimination (Complaint-01, Claim Three); retaliation (Complaint-01, Claim Four; Complaint-02, Claim Three; Complaint-03, Claim Three); hostile work environment on account of his religion and in retaliation for opposing discrimination (Complaint-01, Claim Five; Complaint-03, Claim Four); and violation of the Privacy Act (Complaint-01, Claim Six).
The gravamen of Plaintiff's claim of intentional discrimination on the basis of his religion is that beginning in 1998, Defendant required Plaintiff to repay the "compensatory time" he was allowed for religious observances in a shorter period of time than he did from 1984 until 1988. Complaint-01, ¶¶ 11, 27, 47, 145-47. The gravamen of Plaintiff's retaliation claim is that Defendant "prevented [him] from being promoted, caused disciplinary actions to be taken against him [and] caused his termination[.]" Id., ¶¶ 150-51. The gravamen of Plaintiff's hostile work environment claim is that Defendant "intentionally and repeatedly harassed [P]laintiff over an extended period of time on the basis of . . . his religion and in retaliation for his opposition to unlawful discriminatory practices, with the purpose or effect of interfering with his work performance and creating and maintaining a hostile work environment[.]" Id., ¶ 153.
II. CONTENTIONS OF THE PARTIES
Defendant moves for summary judgment in his favor with respect to the remaining claims. Defendant submits that summary judgment should be granted with respect to Plaintiff's discrimination, retaliation and hostile work environment claims because "Plaintiff cannot demonstrate . . . a prima facie case that the Defendant discriminated or retaliated against him based on . . . his religion, . . . or . . . that the Defendant's non-discriminatory and non-retaliatory reasons for taking the actions at issue were a pretext for unlawful discrimination or retaliation." Defendant's Memorandum at 3. With respect to Plaintiff's Privacy Act claim, Defendant submits that summary judgment in Defendant's favor is warranted because Plaintiff cannot prove that the disclosure of his records was "willful and intentional[,]" or that he suffered actual damages as a consequence of the disclosure. Id. at 16-19.Defendant's motion for summary judgment is accompanied by a statement of material facts as to which Defendant contends there is no genuine issue, which includes references to the parts of the record on which Defendant relies to support the statement. See Defendant's Statement of Material Facts Not in Dispute ("Defendant's Statement").
Plaintiff opposes Defendant's motion, and moves for summary judgment on the issue of liability with respect to his religious discrimination, retaliation and hostile work environment claims. Plaintiff submits that Defendant's motion for summary judgment must be denied "because the material facts are either in dispute or establish Defendant's liability." Plaintiff's Memorandum in Opposition to [Defendant's] Motion for Summary Judgment ("Plaintiff's Opposition") (Docket No. 162) at 1. Plaintiff's opposition is accompanied by a 73-page statement of facts as to which Plaintiff contends there is a genuine issue to be litigated. In this submission, Plaintiff repeats each statement enumerated by Defendant, then offers a narrative response, and, in some instances, alternative citations. See, e.g. Plaintiff's Statement of Material Facts in Dispute, ¶ 2.
Plaintiff does not move for summary judgment with respect to his Privacy Act claim.
Plaintiff included a "Statement of Material Facts" in the memorandum in support of his motion for summary judgment. Plaintiff principally relies upon his own 50-page affidavit, offered as an exhibit to the motion, as support for the facts asserted in his statement. See, e.g., Plaintiff's Statement of Material Facts, ¶¶ 32-41.
Defendant, in his opposition to Plaintiff's motion, submits that Plaintiff relies upon "mischaracterization of fact[s] and conclusory assertions" in support of his claims of discrimination and retaliation. Defendant's Opposition to Plaintiff's Motion for Summary Judgment ("Defendant's Opposition") (Docket No. 160), Statement of Genuine Issues at 2. Defendant further submits that Plaintiff relies upon allegations regarding his medical condition which the court ordered stricken. Id.
Each party filed a reply. Defendant argues that Plaintiff relies upon "his own personal conclusions and arguments[,]" rather than material facts, and impermissibly raises allegations regarding his medical condition. See, e.g., Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Defendant's Reply") (Docket No. 169) at 1. Plaintiff argues that "[Defendant] failed to meet the legal requirements of presenting admissible evidence showing there are material facts in dispute." Plaintiff's Reply Memorandum in Support of Motion for Summary Judgment ("Plaintiff's Reply") (Docket No. 170) at 2.
III. SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F. 3d 1538, 1540 (D.C. Cir. 1995). The burden is upon the non-moving party to demonstrate that there are material facts in dispute. Celotex, 477 U.S. at 324. The dispute about a material fact is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it is capable of affecting the outcome of the suit under governing law. Id. In considering a motion for summary judgment, all evidence and inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [his] favor." Anderson, 477 U.S. at 255; see also Bayer v. United States Dept. Of Treasury, 956 F.2d 330, 333-34 (D.C. Cir. 1992).
Plaintiff was precluded from offering evidence regarding his physical or mental condition; accordingly, neither his references to his physical or mental condition, nor any inferences which otherwise might have been drawn from such references, have been considered by the undersigned in the evaluation of the pending motions. December 18, 2003 Order at 2-3; see also September 14, 2004 Order at 2-7; September 30, 2004 Memorandum Opinion and Order at 4; January 31, 2005 Order at 1-2.
This circuit has held that because proof of discrimination "is difficult for a plaintiff to establish," the court "should view summary judgment motions in such cases with special caution."Childers v. Slater, 44 F. Supp. 2d 8, 15 (D.D.C. 1999) (citingAka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C. Cir. 1997)); see also Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C. 1993). Nevertheless, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Rather, the non-movant must come forward with "specific facts showing that there is a genuine issue for trial." Id. at 587. Indeed, Rule 56(e) of the Federal Rules of Civil Procedure provides, in relevant part:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). The nonmoving party must therefore
go beyond the pleadings and by [his] 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." . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing[.]Celotex, 477 U.S. at 324 (emphasis supplied) (citation omitted).
In addition, Local Civil Rule 7(h) provides:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement. . . . . In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
LCvR 7(h) (emphasis supplied); see also LCvR 56.1.
The District of Columbia Circuit has held that "[i]f the party opposing the motion fails to comply with this local rule, then `the district court is under no obligation to sift through the record' and should `[i]nstead . . . deem as admitted the moving party's facts that are uncontroverted by the nonmoving party's Rule [LCvR 7(h)] statement.'" Securities and Exch. Comm'n v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C. Cir. 2000) (citation omitted). The circuit "[has] explained . . . that the `the procedure contemplated by the [local] rule . . . isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record.'" Burke v. Gould, 286 F.3d 513, 517 (D.D.C. 2002) (quoting Gardels v. Cent. Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir. 1980)). This circuit has affirmed the grant of summary judgment where the nonmoving party failed to comply with Federal Rule of Civil Procedure 56(c) and Local Rule 7(h) or its predecessor, and in the statement of genuine factual issues, "did not set forth specific, material facts, but simply asserted, without citing evidence in the record, that there was a disputed issue[.]" Burke, 286 F.3d at 518 (quoting Tarpley v. Greene, 684 F.2d 1, 7 (D.C. Cir. 1982)).
IV. STANDARDS GOVERNING CONSIDERATION OF PLAINTIFF'S CLAIMS
A. Title VII Claims
In Texas Dep't of Community of Affairs v. Burdine, 450 U.S. 248 (1981), the Court, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), set forth "the basic allocation of burdens and order of presentation of proof" in a Title VII case alleging disparate treatment violative of Title VII. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. The District of Columbia Circuit Court has held that a plaintiff makes out a case of disparate-treatment discrimination "by establishing that: `(1) [he] is a member of a protected class; (2) [he] suffered and adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.'" George v. Leavitt, Administrator, EPA, 407 F.3d 405, 412 (D.C. Cir. 2005); (citingStella v. Mineta, 284 F. 3d 135, 145 (D.C. Cir. 2002)). In a case where wrongful discharge is alleged, the plaintiff need not show that he was replaced by a person outside his protected class in order to establish a prima facie case; rather, the prima facie case "require[s] a showing that the discharge was not attributable to the two analogous common legitimate reasons for discharge: performance below the employer's legitimate expectations or the elimination of the plaintiff's position altogether." George, 407 F.3d at 412.
If the plaintiff succeeds in establishing a prima facie case, then the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the challenged employment action. Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804. Should the defendant carry this burden, then the plaintiff must have an opportunity to prove by a preponderance of the evidence that the legitimate, non-discriminatory reasons offered by the Defendant were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. at 254; McDonnell Douglas, 411 U.S. at 804.
To make out a prima facie case of retaliation, a plaintiff must show that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse personnel action; and (3) a causal connection existed between the two. Burton v. Batista, 339 F. Supp. 2d 97, 105 (D.D.C. 2004) (citing, inter alia, Brown v. Brody, 199 F.3d. 446, 452 (D.C. Cir. 1999)).
To establish a prima facie case of hostile work environment, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he was subject to unwelcome harassment; (3) the harassment occurred because of his protected status; (4) the harassment affected a term, condition or privilege of employment; and (5) the employer knew or should have known of the harassment, but took no action to prevent it. Burton, 339 F. Supp. 2d at 106-107 (citing, inter alia, Jones v. Billington, 12 F. Supp. 2d 1, 11 (D.D.C. 1997)).
The Supreme Court has emphasized that the "central focus of the inquiry" in a Title VII cases "is always whether the employer is treating `some people less favorably than others because of their race, color, religion, sex, or national origin.'" George, 407 F.3d at 411 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Thus, "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant[,] . . . [because] [t]he district court has before it all the evidence it needs to decide whether `the defendant intentionally discriminated against the plaintiff.'" United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Burdine, 450 U.S. at 253)).
B. Privacy Act Claim
The Privacy Act prohibits, inter alia, disclosure by the government of "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains[.]" 5 U.S.C. § 552a(b). One relevant exception permits disclosure "to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties[.]" 5 U.S.C. § 552a(b)(1); see also Roberts v. U.S. Dept. Of Justice, 366 F. Supp. 2d 13, 24 (D.D.C. 2005).
V. DISCUSSION
A. Plaintiff's Title VII Claims
1. Defendant's Motion
Applying the McDonnell Douglas framework to the evaluation to Plaintiff's discrimination, retaliation and hostile work environment claims, and "proceed[ing] to `the ultimate question of discrimination vel non[,]" the undersigned finds that Plaintiff has failed to offer either evidence that the reasons offered by Defendant for the challenged actions were pretextual, or any other evidence from which a violation of Title VII might be inferred. See George, 407 F.3d at 411-12 (quotingAikens, 460 U.S. at 714); see also id. at 413 ("[W]e remain mindful that a plaintiff can show discrimination `either directly by persuading the [factfinder] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'") (citations omitted); Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1154 (D.C. Cir. 2004) ("[O]nce the defendant has responded with rebuttal evidence, the fact finder normally proceeds to the ultimate on the merits to determine whether the employer intentionally discriminated against the plaintiff.").
This circuit has endorsed the application of the McDonnell Douglas framework to claims of hostile work environment, as well as to claims of discrimination and retaliation. Baloch v. Norton, 355 F. Supp. 2d 246, 259 (D.D.C. 2005) (citations omitted).
The undersigned finds that Plaintiff does not controvert the material facts identified by Defendant, and in his opposition to Defendant's motion, offers only a narrative account of his version of the events surrounding his Title VII claims. See, e.g., Plaintiff's Statement of Material Facts in Dispute, ¶¶ 5-23, 56-73. To the extent which Plaintiff disputes any of the facts identified by Defendant, the version of events offered by Plaintiff concerns matters which are not material. "Plaintiff's Statement of Facts" in response to Defendant's eleventh statement is illustrative:
11. In April, 1998 Plaintiff requested compensatory leave for religious observance of Passover. Complaint at ¶ 27.
Plaintiff's Statement of Facts: More accurately, ¶ 27 of the Complaint states: "Plaintiff has received approval to use compensatory time to observe Passover in mid-April 1998." ¶ 10 of the Statement [Plaintiff's] Material Facts provides: In March 1998, Mr. Spiegel had received approval of his request to use 14 hours of compensatory time to observe Passover during April 1998; 5 hours on April 9, 1998 and 9 hours on April 13, 1998. Answer ¶ 27; Affidavit ¶ 22; Spiegel deposition 61:15 to 62:1. Defendant already admitted these facts in its Answer; there is no reason to allow EPA to misstate them here. Plaintiff's Statement of Material Facts in Dispute at 6-7.
The court therefore may deem admitted all of the material facts identified by Defendant in Defendant's Statement of Material Facts Not in Dispute. Securities and Exch. Comm'n v. Banner Fund Int'l, 211 F.3d at 616. However, whether the court actually does so is of little moment, because Plaintiff offers no evidence of pretext as part of his opposition to Defendant's motion. Defendant offers evidence of Plaintiff's failure to comply with the regulations governing both his leave requests and his February 19, 1999 Performance Assistance Plan as the legitimate, non-discriminatory reasons for the challenged actions. See Defendant's Statement of Material Facts Not in Dispute, ¶¶ 8-28, 39-43, 44-72, 73-86. Plaintiff does not dispute the validity of the reasons offered by Defendant, or otherwise suggest that the reasons offered were pretextual. Instead, Plaintiff asserts that "the record shows he was an outstanding performer who regularly received high ratings, awards and promotions." Plaintiff's Opposition at 25.
This assertion is insufficient as an effort to identify a genuine issue for trial largely by reason of Plaintiff's reliance upon his own affidavit, which consists entirely of conclusory allegations unsupported by evidence in the record. While the court must make all reasonable inferences in Plaintiff's favor, the court "need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations." Turner v. District of Columbia, No. CIV.A. 02-1514, 2005 WL 2036207, at *17 (D.D.C. August 25, 2005) (citation omitted). Summary judgment in favor of the movant is warranted where, as here, the plaintiff relies upon a series of conclusions regarding the movant's motive and intent, but offers no evidence in support of the conclusions. "Even in employment discrimination cases `where elusive concepts such as motive or intent are at issue,' [the Rule 56] standard compels summary judgment if the non-moving party `rests merely upon conclusory allegations, improbable inferences and unsupported speculation.'"Feliciano de la Cruz v. El Conquistador Resort, 218 F.3d 1,5 (1st Cir. 2000) (citation omitted).
2. Plaintiff's Motion
Additionally, the undersigned finds that Plaintiff has failed to demonstrate, in accordance with the applicable federal and local rules, that he is entitled to summary judgment on the issue of liability with respect to his remaining Title VII claims. In the memorandum in support of his motion, Plaintiff submits that "defendant EPA subjected [him] to a wholesale onslaught of harassment and retaliation, including engaging in religious discrimination interfering with his long-standing practice of observing the High Holy days in the Fall and Passover in the Spring." Memorandum in Support of Plaintiff's Motion for Summary Judgment ("Plaintiff's Memorandum") at 2. Plaintiff further submits that "[t]here is ample support in the record demonstrating that the material facts underlying these [Title VII] violations are not at issue and that plaintiff is entitled to summary judgment against defendant for its many acts of religious discrimination, retaliation for protected activities, and hostile work environment." Id. at 1. However, in his "Statement of Material Facts," Plaintiff offers only a lengthy narrative account of his requests for leave for religious observances beginning in 1984 and continuing through 2000, and his protected activities during his tenure at EPA. See, e.g., Plaintiff's Memorandum, "Statement of Material Facts," ¶¶ 2-39, 41-43, 51-56, 69-72, 100-103. Plaintiff relies principally upon his 50-page affidavit as support for the facts set forth in the statement. Id.; see also Plaintiff's Memorandum, Affidavit of Steven Mark Spiegel.
For example, "material fact" 42 reads: "EPA engaged in wide-spread religious discrimination, retaliation and subjected Mr. Spiegel to a hostile work environment based on his religion. EPA managers harassed plaintiff by exploiting his observance of religious holidays to harass him and interfere with his performance during the two performance opportunity periods in 1999 and 2000, when they knew he would be observing Jewish holidays, and they specifically interfered and harassed him over his observance, made numerous threats of AWOL for trying to observe religious holidays, and persisted in ongoing threats and instituting disciplinary actions sought to interfere with his performance so they could fire him. Spiegel Dep. 55:2 to 59:16."
For these reasons, the undersigned finds that Plaintiff has failed to demonstrate that there is no genuine issue as to any material fact. Indeed, Plaintiff has not even identified any material facts in accordance with Rule 56(e) of the Federal Rules of Civil Procedure and Local Civil Rule 7(h). Summary judgment in his favor on the issue of liability with respect to his remaining Title VII claims therefore must be denied.
Given Plaintiff's failure to make the requisite showing with respect to the first element of the summary judgment standard, the undersigned will forego a discussion herein of the second element of the standard.
B. Plaintiff's Privacy Act Claim
Plaintiff's claim regarding Defendant's alleged violations of "his right to privacy" under the Privacy Act, 5 U.S.C. § 552a, is confined to the first of Plaintiff's three complaints. There, Plaintiff alleges that
defendant disclosed plaintiff medical documentation to other persons. This disclosure was not only done without plaintiff's consent, it was done after plaintiff expressly prohibited such disclosure and warned that such process would result in violation of the Privacy Act. Defendant acknowledged this concern, and proceeded to disclose plaintiff's private medical information to persons not entitled or required to receive such information. The disclosure was therefore intentional and willful. The disclosure caused plaintiff to suffer . . . mental distress, embarrassment, and other emotional harm in excess of $1000. Complaint-01, ¶ 155. Defendant submits that he is entitled to summary judgment in his favor because (1) Defendant's consideration of the "medical documentation" which is the subject of Plaintiff's claim was in accordance with the Privacy Act's "need to know" provision; (2) Plaintiff cannot prove a "willful and intentional" disclosure of protected information; and (3) Plaintiff cannot prove actual damages from the alleged disclosure of protected information. Defendant's Memorandum at 15-19.
Plaintiff begins his discussion of Defendant's motion for summary judgment on the Privacy Act claim with the assertion that "There are Genuine Issues of Material Facts in Dispute as to EPA's Liability for Improperly Disseminating Plaintiff's Privacy Protected Medical Information." Plaintiff's Opposition at 10. However, as is the case with respect to his Title VII claims, Plaintiff fails to identify a genuine issue of fact for trial. Instead, Plaintiff asserts that the "medical documentation" was reviewed by EPA employees other than the only one with a "need to know." Plaintiff's Opposition at 12. Relying solely upon his own affidavit, Plaintiff submits that the alleged Privacy Act violation "result[ed] in thousands to hundreds of thousands of dollars of damages." Id. at 13.
With no citation of authority or reference to evidence in the record, Plaintiff submits that "[t]here was `no need' for any . . . EPA employees to see Mr. Spiegel's protected medical documentation" which he "submitted solely to Ms. Kelley for her review." Id. at 10, 12.
Plaintiff cites paragraph 15 of his supplemental affidavit as support for this statement. However, paragraph 15 of the supplemental affidavit is limited to Plaintiff's assertion that Defendant refused his requests for leave in order to participate in the EEO or grievance process. Plaintiff's Opposition, Supplemental Affidavit of Steven Mark Spiegel, ¶ 15. In paragraph 16, Plaintiff states that the disclosure of which he complains "caused me to suffer . . . mental distress, embarrassment, and other emotional harm well in excess of $1000, resulting in thousands to hundreds of thousands of dollars of damages." Id., ¶ 16. Plaintiff includes no citation to evidence in the record as support for any of the assertions made in paragraph 16 of his supplemental affidavit.
The undersigned finds that Plaintiff has failed to identify a genuine issue for trial with respect to his Privacy Act claim. Additionally, the undersigned finds that Plaintiff has offered no evidence in support of his claim that he has incurred "thousands to hundreds of thousands of dollars of damages." On the basis of these findings, the undersigned concludes that Plaintiff has failed to controvert the material facts identified by Defendant, or to identify a genuine issue for trial with respect to his Privacy Act claim. Defendant's motion for summary judgment therefore should be granted. Doe v. Chow, 540 U.S. 614, 627 (2004) (damages may be recovered only upon a showing of an intentional or willful violation of the Act "producing some adverse effect.").
No facts material to the Privacy Act claim are even mentioned by Plaintiff in his 73-page "Statement of Material Facts in Dispute."
VI. CONCLUSION
For the foregoing reasons, the undersigned finds that (1) Plaintiff has failed to show that there is no genuine issue as to any material fact regarding the issue of liability with respect to his Title VII claims; (2) Plaintiff has failed to show that there is a genuine issue for trial with respect to any of his remaining claims; and (3) Defendant has shown, as to all of the remaining claims, that there is no genuine issue as to any material fact, and that Defendant is entitled to judgment as a matter of law. It is, therefore, this 22nd day of September, 2005,
RECOMMENDED that Plaintiff's Motion for Summary Judgment (Docket No. 153) be DENIED; and it is
FURTHER RECOMMENDED that Defendant's request that "Plaintiff's Subsequently Filed Complaints Should be Dismissed" ( see Defendant's Memorandum at 8-14) be STRICKEN; and it is FURTHER RECOMMENDED that Defendant's Motion for Summary Judgment (Docket No. 151) be GRANTED.
See n. 3, supra.