UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
______________________________ ) MARILYN TOLBERT-SMITH, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1216 (RWR) ) STEVEN CHU, ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff, Marilyn Tolbert-Smith, an employee in the Legacy
Management branch (“LM”) of the United States Department of
Energy, brings claims under the Rehabilitation Act, Title VII of
the Civil Rights Act of 1964, and the Privacy Act against the
Secretary of the Department of Energy,1 alleging discrimination,
hostile work environment, and improper disclosure of information
regarding her medical condition. The Secretary has filed a
motion for partial judgment on the pleadings or, in the
alternative, for summary judgment, arguing that Tolbert-Smith’s
claims are time-barred, and that there is no genuine issue of
material fact with respect to plaintiff’s Privacy Act claims.
Because Tolbert-Smith timely filed her Equal Employment
Opportunity Commission (“EEOC”) complaint and her district court
1 Steven Chu is substituted for Samuel Bodman under Federal Rule of Civil Procedure 25(d). - 2 -
complaint, the Secretary’s motion, treated as a motion for
summary judgment, will be denied with respect to the timeliness
issue. Further, because Tolbert-Smith has stated a claim for
relief but has not had a reasonable opportunity to contest
matters outside the pleadings on her Privacy Act claim, the
Secretary’s motion with respect to that issue will be denied
without prejudice to the parties filing supplemental memoranda
that address the Privacy Act claim.
BACKGROUND
Tolbert-Smith has been employed by the Department of Energy
since 1991 and as a program analyst in LM since that branch’s
inception in December 2003. (Second Am. Compl. ¶ 23.2) Terrance
Brennan, a team leader in LM, originally supervised Tolbert-
Smith. (Id. ¶ 25.) Throughout Tolbert-Smith’s employment with
LM, she has suffered from clinical depression. (Id. ¶¶ 31-36.)
Tolbert-Smith alleges that in November 2004, Brennan contacted
her treating physician without her consent to request information
about her illness and medical treatment. (Id. ¶ 46.) Tolbert-
Smith also alleges that members of LM management made disparaging
2 Tolbert-Smith twice amended her complaint after the Secretary filed his motion for partial judgment on the pleadings. Because the Secretary incorporated by reference his motion for partial judgment on the pleadings in a motion for summary judgment that he filed after Tolbert-Smith amended her complaint (Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. at 3), the motion for partial judgment on the pleadings will be deemed directed to the second amended complaint. - 3 -
remarks about her illness. (Id. ¶ 47.) On August 31, 2005,
Tolbert-Smith contacted the Department’s Office of Civil Rights
(“OCR”), alleging discrimination and requesting counseling. (Id.
¶¶ 9, 61.) Tolbert-Smith participated in the requisite EEO
counseling process, retained counsel, and notified OCR and the
agency that she had obtained representation. (Id. ¶¶ 68, 97.)
Several months after Tolbert-Smith sought counseling, members of
LM management placed confidential information regarding her
illness on a server accessible by all federal employees and
outside contractors. (Id. ¶¶ 72-75.)
On January 25, 2006, Tolbert-Smith received a “Notice of
Final Interview with EEO Counselor and Right to File a Formal
Complaint” from OCR. (Pl.’s Mem. of P. & A. in Opp’n to Def.’s
Mot. for Partial J. (“Pl.’s Mem.”), Ex. 2, Polydor Decl. ¶ 6.3)
Following receipt, Tolbert-Smith contacted her attorney, Cheryl
Polydor, and informed her of the Notice. (Id.) Polydor received
a copy of that notice from the Department in the mail on
February 22, 2006. (Id. ¶ 7.) The notice stated that 29 C.F.R.
§ 1614.105(d) required Tolbert-Smith to file any formal complaint
within fifteen days of receipt of the notice. (Pl.’s Stmt. of
Genuine Issues (“Pl.’s Stmt.”) ¶ 3.) Tolbert-Smith alleges that
she filed a formal administrative complaint on February 9, 2006.
3 The plaintiff’s exhibit erroneously states certain relevant dates in 2006 as having been in 2007. - 4 -
(Pl.’s Mem., Ex. 2, Polydor Decl. ¶ 8.) She claims that, on that
day, Polydor addressed an envelope containing the notice by
gluing an address label onto the front of the envelope and placed
it in the mail. (Id. ¶¶ 8-9.) Eight days later, the envelope
was returned to Polydor for failure to attach an address, as the
glued-on label had become detached. (Id. ¶¶ 10-11.) Upon return
of the envelope, Polydor procured a new envelope, on which she
typed the intended address. She mailed the envelope on
February 17, 2006, the date OCR credited as the filing date.
(Id. ¶ 12.) On March 30, 2006, Polydor received an email
informing her that OCR had determined that the administrative
complaint was untimely and would be dismissed as a result. (Id.
¶ 13.) Tolbert-Smith received an official notice of dismissal on
April 3, 2006. (Second Am. Compl. ¶ 19.)
Polydor asserts that she traveled to this courthouse on the
night of July 3, 2006 to place Tolbert-Smith’s district court
complaint in the drop box for after-hours filing. (Pl.’s Mem.,
Ex. 2, Polydor Decl. ¶ 19.) When she arrived, she noticed that
the three time-clocks for stamping filings –– one for the U.S.
District Court, one for the U.S. Bankruptcy Court, and one for
the U.S. Court of Appeals –– displayed different times and dates.
(Id. ¶ 24.) The bankruptcy and circuit clocks displayed dates of
“June 34" and “July 33,” respectively (id. ¶ 25), and the
machines stamped these dates on an extra copy of Tolbert-Smith’s - 5 -
complaint. (Id., Ex. 2, Polydor Decl. ¶ 27; Ex. 5 at 1.) The
bankruptcy stamp also reflects a time of “P 11:59.” (Id., Ex. 5
at 1.) Polydor did not stamp the copy of the complaint with the
district court machine. (See id.) The Court was closed the next
day for the July 4th holiday, and the Clerk docketed the
complaint on July 5, 2006. (Pl.’s Mem., Ex. 2, Polydor Decl.
¶¶ 28, 29.) Two of the three summonses that the Clerk’s Office
issued reflected a July 5, 2006 filing date, but the summons to
the Attorney General contained two different date stamps –– one
for July 3, 2006, and one for July 5, 2006. (Id., Ex. 2, Polydor
Decl. ¶ 31; Ex. 6.)
The Secretary has moved for partial judgment on the
pleadings or, in the alternative, summary judgment, arguing that
Tolbert-Smith failed to exhaust her administrative remedies
because she did not timely file her EEOC complaint or her
district court complaint, and that she has failed to demonstrate
that the Secretary willfully or intentionally disclosed any
documents from its records. Tolbert-Smith opposes, arguing that
both her EEOC and district court complaints were timely filed,
and that she has established willful and intentional violations
of the Privacy Act.
DISCUSSION
A party may move for judgment on the pleadings “[a]fter the
pleadings are closed –– but early enough not to delay trial[.]” - 6 -
Fed. R. Civ. P. 12(c). Such a motion is granted if there are no
material facts in dispute and the movant is entitled to judgment
as a matter of law. Stewart v. Evans, 275 F.3d 1126, 1132 (D.C.
Cir. 2002). “In considering a motion for judgment on the
pleadings, the Court should ‘accept as true the allegations in
the opponent’s pleadings’ and ‘accord the benefit of all
reasonable inferences to the non-moving party.’” Id. (quoting
Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir.
1987)).
When “matters outside the pleadings are presented to and not
excluded by the court” on a Rule 12(c) motion, “the motion must
be treated as one for summary judgment under Rule 56.” Fed. R.
Civ. P. 12(d). A motion may be treated as one for summary
judgment even if the parties have not been provided with notice
or an opportunity for discovery if they have had a reasonable
opportunity to contest the matters outside the pleadings such
that they are not taken by surprise. See Highland Renovation
Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C.
2009). Summary judgment may be granted when the moving party
demonstrates that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). In considering a motion
for summary judgment, a court is to draw all justifiable
inferences from the evidence in favor of the nonmovant. Cruz- - 7 -
Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C.
2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)). The relevant inquiry “is the threshold inquiry of
determining whether there is the need for a trial –– whether, in
other words, there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.” Liberty Lobby,
477 U.S. at 250. A genuine issue exists where the “evidence is
such that a reasonable jury could return a verdict for the non-
moving party[,]” as opposed to where the evidence is “so one-
sided that one party must prevail as a matter of law.” Id. at
248, 252.
I. EXHAUSTION
Tolbert-Smith has submitted a statement of material facts
under Local Civil Rule 7(h) that addresses the Secretary’s
exhaustion arguments. Thus, the motion for partial judgment on
the pleadings will be treated as a motion for summary judgment
with respect to this issue. See Langley v. Napolitano, 677 F.
Supp. 2d 261, 263 (D.D.C. 2010) (construing motion for judgment
on pleadings as motion for summary judgment when both parties
submitted statements of material facts because plaintiff “had a
reasonable opportunity to respond to the attached materials”). - 8 -
A. EEOC Complaint
The Rehabilitation Act requires administrative exhaustion
because it “limits judicial review to employees ‘aggrieved by the
final disposition’ of their administrative ‘complaint[.]’”
Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006). A
plaintiff who believes she has been discriminated against based
upon a disability “must consult a Counselor prior to filing a
complaint in order to try to informally resolve the matter.” 29
C.F.R. § 1614.105(a). If the claim is not resolved within thirty
days of the aggrieved party contacting the office to request
counseling, the office must notify the party “of the right to
file a discrimination complaint” with the agency “within 15 days
of receipt of the notice.” 29 C.F.R. § 1614.105(d). An agency
“shall dismiss an entire complaint” that was not filed within
“the applicable time limits[.]” 29 C.F.R. § 1614.107(a)(2).
After consulting with a counselor, Tolbert-Smith received on
January 25, 2006 a notice of her right to file a complaint with
the agency. The Secretary argues that Tolbert-Smith’s fifteen-
day deadline for filing a formal complaint was February 9, 2006,
citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93
(1990), for the proposition that the time to file a complaint
begins to run from the date that notice is delivered either to
the complainant or to her attorney. (Def.’s Mem. of P. & A. in
Supp. of Def.’s Mot. for Partial J. on the Pleadings or, in the - 9 -
Alternative, for Summ. J. (“Def.’s Mem.”) at 6.) For the purpose
of timely filing a civil complaint in federal court, “notice of a
final action is considered received by a claimant when the notice
reaches either a claimant or the claimant’s attorney, whichever
comes first.” McKay v. England, Civil Action No. 01-2535 (JR),
2003 WL 1799247, at *1 (D.D.C. Mar. 27, 2003). However, for the
purpose of administrative proceedings before the EEOC, when a
complainant is represented by counsel, the “time frames for
receipt of materials shall be computed from the time of receipt
by the attorney.” 29 C.F.R. § 1614.605(d); see also Harris v.
Bodman, 538 F. Supp. 2d 78, 81 (D.D.C. 2008) (noting that 29
C.F.R. § 1614.605(d) “applies to administrative proceedings
before the EEOC; it does not purport to apply to the limitations
period for filing suit in federal court” (quoting McKay, 2003 WL
1799247 at *2)). Therefore, Tolbert-Smith’s administrative
complaint was not due until March 9, 2006, fifteen days after
Polydor’s receipt of the notice.
A complaint is considered filed on the date it is
postmarked. 29 C.F.R. § 1614.604(b). OCR noted February 17,
2006, the date Polydor re-mailed the complaint after it was
returned as undeliverable, as the date of filing. (Def.’s Mem.
at 6.) Because this date fell within fifteen days of Polydor’s
receipt of the notice, OCR incorrectly rejected Tolbert-Smith’s
complaint as untimely. Therefore, Tolbert-Smith did not fail to - 10 -
exhaust her EEOC administrative remedies before filing suit in
this court.
B. Civil Action
After an administrative complaint is dismissed, the
complainant may then either appeal the dismissal to the EEOC
within thirty days, 29 C.F.R. § 1614.402(a), or file a civil
action within ninety days of receipt of the final agency action.
29 C.F.R. § 1614.407. Tolbert-Smith received notice of final
agency action on April 3, 2006 (Second Am. Compl. ¶ 19), and
there is no dispute that her deadline to file a complaint in
district court was July 3, 2006.4 (See Pl.’s Mem. at 8; Def.’s
Mem. at 8.) While “[c]ourts apply the ninety-day time limit
strictly and will dismiss a suit for missing the deadline by even
one day[,]” Wiley v. Johnson, 436 F. Supp. 2d 91, 96 (D.D.C.
2006), courts have also hesitated to grant a defendant’s summary
judgment motion on the ground that a complaint was not timely
filed when the date of filing is in dispute. See, e.g., Nasr v.
De Leon, 18 Fed. Appx. 601, 605 (9th Cir. 2001) (concluding that
summary judgment for defendant on statute of limitations grounds
was inappropriate because documents in the record “prevent[ed] a
definitive finding” of the claim’s accrual date); Arakaki v.
United States, 62 Fed. Cl. 244, 259 (Fed. Cl. 2004) (denying
4 The ninetieth day, July 2, 2006, fell on a Sunday, so the date for timely filing was July 3, 2006. See Fed. R. Civ. P. 6(a)(1)(C). - 11 -
defendant’s motion to dismiss, treated as a motion for summary
judgment, on statute of limitations grounds because the question
of when plaintiff’s claim for breach of contract accrued depended
on sale date, a factually contested issue).
Here, there is a factual dispute as to the date of filing.
Tolbert-Smith claims that she filed her complaint on July 3,
while the Secretary claims that Tolbert-Smith filed her complaint
on July 5. (See Pl.’s Mem. at 8; Def.’s Mem. at 8.) Tolbert-
Smith cites Polydor’s affidavit, in which she states that she
arrived at the courthouse “several minutes before midnight on
July 3, 2006.” (Pl.’s Mem., Ex. 2, Polydor Decl. ¶ 19.) Polydor
further states that the clocks displayed the incorrect dates of
July 33, 2006 and June 34, 2006, and that in her confusion she
could “not recall precisely which clocks [she] used to stamp the
Complaint[.] (Id. ¶¶ 25, 26.) Tolbert-Smith also cites a copy
of her complaint, which largely corroborates Polydor’s account,
as the complaint contains a bankruptcy time stamp dated July 33,
2006 at “P 11:59” and a circuit time stamp dated June 34 2006,
although at 12:03 AM. (Id., Ex. 5 at 1.) That the Clerk’s
Office stamped the summons to the Attorney General with
conflicting July 3, 2006 and July 5, 2006 date stamps provides
some additional support for Polydor’s account. Even though the
complaint does not contain a district court time stamp, the
Secretary has not provided any other affirmative evidence that - 12 -
suggests that Tolbert-Smith did not file her complaint on July 3,
2006. Drawing all inferences in favor of the nonmovant, a
reasonable jury could easily find that Tolbert-Smith timely filed
her complaint.
II. PRIVACY ACT
The Privacy Act, 5 U.S.C. § 552a, sets forth standards for
maintaining and restrictions upon disclosing certain personnel
records. Among the records covered by the Act are “item[s],
collection[s], or grouping[s] of information about an
individual[’s] . . . medical history . . . or employment
history[.]” 5 U.S.C. § 552a(a)(4). An individual may bring a
civil action against an agency if the agency “fails to comply
with [the disclosure restrictions] . . . in such a way as to have
an adverse effect on [that] individual[,]” 5 U.S.C.
§ 552a(g)(1)(D), and causes actual damages. Thompson v. Dep’t of
State, 400 F. Supp. 2d 1, 7 (D.D.C. 2005). A plaintiff may
recover damages from the United States if “the agency acted in a
manner which was intentional or willful.” 5 U.S.C. § 552a(g)(4).
No cause of action arises for damages if a disclosure was merely
inadvertent; rather, “the violation must be so ‘patently
egregious and unlawful’ that anyone undertaking the conduct
should have known it ‘unlawful.’” Laningham v. U.S. Navy, 813
F.2d 1236, 1242 (D.C. Cir. 1987) (quoting Wisdom v. Dep’t of
Hous. & Urban Dev., 713 F.2d 422, 425 (8th Cir. 1983)); see also - 13 -
Albright v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984)
(noting that an agency acts intentionally or willfully “either by
committing the act without grounds for believing it to be lawful,
or by flagrantly disregarding others’ rights under the Act”).
Tolbert-Smith has stated a claim for relief under the
Privacy Act. She pled that a member of LM management placed
records referring and relating to her disability on a server
accessible by other federal employees and members of the public.
(Second Am. Compl. ¶¶ 115, 116.) The information on the server
constituted a record under 5 U.S.C. § 552a(a)(1) because it
contained information about Tolbert-Smith’s medical and
employment circumstances. Tolbert-Smith has pled that she has
suffered an adverse effect to her professional reputation, from
which she has suffered actual damages. (Second Am. Compl.
¶ 118.) Moreover, Tolbert-Smith alleged that the disclosure was
willful and intentional. (Id. ¶¶ 116, 117.) Specifically, she
claimed that the individual who placed her information on the
server did so to retaliate against her for filing an
administrative complaint (id. ¶ 78), which constitutes an
allegation that the disclosure was intentional or willful. See
Toolaprashad v. Bureau of Prisons, 286 F.3d 576, 584 (D.C. Cir.
2002) (noting that punishing a plaintiff for filing an
administrative grievance satisfies the definition of a willful or - 14 -
intentional Privacy Act violation).5 The Secretary’s answer
denied Tolbert-Smith’s Privacy Act allegations and placed in
dispute the material facts alleged, precluding judgment on the
pleadings on that claim.
The Secretary’s motion for partial judgment on the pleadings
with respect to Tolbert-Smith’s Privacy Act claim will not be
converted to one for summary judgment on that claim. The
Secretary cited exhibits in his motion for partial judgment on
the pleadings but did not attach any exhibits to that motion.6
(See Def.’s Mem., Docket #31.) As a consequence, Tolbert-Smith
asserted that the Secretary did not support his arguments with
citations to the record (Pl.’s Stmt. ¶¶ 13-15), and she did not
cite the record in her statement of genuine issues. Thus,
because of Tolbert-Smith’s confusion about the exhibits, Tolbert-
Smith has not had a reasonable opportunity to contest the matters
outside the pleadings with respect to the Privacy Act claim, and
converting the motion to one for summary judgment would be
5 Tolbert-Smith also argues that Brennan’s visit to her treating physician and her managers’ comments about her illness violated the Privacy Act. (Pl.’s Mem. at 12.) However, she has not pled that these actions constitute a disclosure under the Privacy Act. Therefore, they do not suffice collectively as an independent Privacy Act violation, although they may serve as evidence that the Secretary acted intentionally or willfully when placing Tolbert-Smith’s information on the server. 6 It appears that the Secretary was citing exhibits attached to his motion to dismiss, filed on October 26, 2006. (See Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, or in the Alternative, for Summ. J., Docket #6.) - 15 -
unfair. Cf. Langley, 677 F. Supp. 2d at 263. The Secretary’s
motion regarding this claim will be denied.
CONCLUSION AND ORDER
Tolbert-Smith timely filed both her EEOC complaint and her
district court complaint, and she has stated a claim for relief
under the Privacy Act. However, it would unfairly surprise
Tolbert-Smith to rely on matters outside the pleadings to
determine if there are any genuine issues of material fact with
respect to her Privacy Act claim. Accordingly, it is hereby
ORDERED that defendant’s motion [31] for partial judgment on
the pleadings or, in the alternative, for summary judgment be,
and hereby is, DENIED. It is further
ORDERED that defendant may renew and supplement his motion
for summary judgment with respect to the Privacy Act claim by
June 9, 2010, plaintiff may supplement her opposition on the
issue by June 23, 2010, and defendant may supplement his reply on
the issue by June 30, 2010.
SIGNED this 26th day of May, 2010.
__________/s/_______________ RICHARD W. ROBERTS United States District Judge