14 F.3d 1143 (6th Cir. 1994), 92-4369, Henson v. National Aeronautics and Space Admin.

Docket Nº:92-4369.
Citation:14 F.3d 1143
Party Name:Saundra HENSON and Milton Randall, Plaintiffs-Appellants, v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION and Julian M. Earls, Defendants-Appellees.
Case Date:January 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1143

14 F.3d 1143 (6th Cir. 1994)

Saundra HENSON and Milton Randall, Plaintiffs-Appellants,

v.

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION and Julian M.

Earls, Defendants-Appellees.

No. 92-4369.

United States Court of Appeals, Sixth Circuit

January 28, 1994

Argued Nov. 12, 1993.

As Amended on Petition for Rehearing

May 2, 1994.[*]

Page 1144

Denise J. Knecht, Cleveland, OH (argued and briefed), for plaintiffs-appellants.

Emily M. Sweeney, U.S. Atty., Lynne H. Buck, Asst. U.S. Atty. (argued and briefed), Cleveland, OH, for defendants-appellees.

Before: GUY and RYAN, Circuit Judges; and MILES, Senior District Judge. [**]

PER CURIAM.

Saundra Henson was an employee of the National Aeronautics and Space Administration's ("NASA") Lewis Research Center in Cleveland, Ohio. She worked within the division of Health, Safety, and Security. Henson filed a lawsuit against NASA and her division chief, Julian M. Earls, in the United States District Court for the Northern District of Ohio. Henson claimed that NASA and Earls committed several common law torts against her. In addition, Henson claimed that NASA violated the Privacy Act by divulging personal medical information to other NASA employees. The district court disposed of the case on summary judgment. The district court granted summary judgment on the common law tort claims because these claims

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must be pursued through the Federal Tort Claims Act which requires an administrative procedure, not a judicial one. The court granted summary judgment on the Privacy Act claim because the court held that there was no genuine dispute of a material fact. Henson appeals. For the reasons stated below, the decision of the district court is affirmed on the common law tort claims and reversed on the Privacy Act claim.

FACTS

In 1977, Saundra Henson began employment at NASA's Lewis Research Center, located in Cleveland, Ohio. She was employed as a Senior Industrial Hygienist within the Environmental Health and Chemical Analysis Branch of the Division of Health, Safety, and Security. The division chief was Julian M. Earls. The branch chief was Albert B. Smith.

In June 1985, NASA held a meeting of senior staff management which both Earls and Henson attended. During the meeting, Earls allegedly reported that no asbestos-related problems existed at the Lewis Research Center. Henson allegedly contradicted Earls's assessment. Henson stated that asbestos conditions were unsafe. She noted a variety of incidents where employees were exposed to asbestos.

Henson claims that after the meeting Earls began treating her differently. For example, she claims that Earls denied her permission to attend a conference which he had previously told her she could attend, that he threatened to transfer her, that he had referred her name to an employment recruiter, that he denied her a budget to attend a course on asbestos abatement, that he moved her office to the basement, and that he failed to discipline an employee who had threatened her.

On November 16, 1985, Henson filed a claim for workers' compensation alleging a work-related illness. Specifically, she claimed that she had stress-related symptoms which resulted from the co-worker's threat and other employment incidents involving Earls. Her workers' compensation claim was approved, and she took leave for 16 months, returning in March 1987.

Prior to Henson's return, Smith scheduled a meeting of the Environmental Health and Chemical Analysis Branch staff, although the evidence suggests that others outside the branch may have attended. 1 One of the topics of discussion was the return of Henson. The agenda for the meeting stated that Henson will be welcomed back with a "Welcome Back Saundra" banner and a cake. Earls requested Dr. John J. Gulan to attend the meeting. Dr. Gulan was Chief of the Occupational Medicine Office. Dr. Gulan's responsibilities included the certification and qualification of personnel. Earls requested Dr. Gulan to discuss Henson's medical condition and her return to work. Dr. Gulan was familiar with Henson's medical condition because Henson and her medical providers submitted medical information to Dr. Gulan's office in order that her workers' compensation claim could be processed. The information was placed in a workers' compensation file. Dr. Gulan told the staff that Henson had been under psychiatric care.

Henson was a member of the Lewis Engineers and Scientists Association, Local 28, AFL-CIO. The union filed a labor grievance claiming that the meeting violated the collective bargaining agreement because it discussed Henson's personal medical history without advance notice to the union or to Henson. NASA settled the grievance by posting a notice that it would not hold similar meetings in the future.

After Henson returned to work, she claims that she was treated differently. For example, Henson claims that Earls advised his secretary that "Any memo of Saundra Henson's has no weight." She claims that she was not given responsibilities and that subordinate employees were given preferential treatment. Also, she claims that she was not allowed to secure equipment without a loan slip, a policy never before required.

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On January 29, 1988, Henson filed a seven-count lawsuit against NASA and Earls in the United States District Court for the Northern District of Ohio. The lawsuit claimed that NASA violated the Privacy Act by releasing confidential medical information without her consent. The lawsuit also claimed that NASA and Earls invaded her privacy and slandered her reputation, that Earls interfered with her employment contract, that Earls intentionally or negligently inflicted severe emotional distress, that NASA and Earls engaged in an intentional, reckless, malicious, and tortious pattern of abusive management, harassment, and threats, that NASA ratified the conduct of Earls, and that her husband had lost the love, affection, support, assistance, and consortium of Henson.

On June 16, 1988, NASA and Earls filed a motion for summary judgment.

On November 2, 1988, the United States filed a motion to substitute the United States as a defendant, in place of Earls. The United States may substitute itself for an employee who committed a tort while acting within the scope of employment. Henson challenged the substitution on the ground that Earls was not acting within the scope of his employment "[s]ince Plaintiffs believe that at least some of Mr. Earls' actions were unlawful and in violation of NASA's own policies and union contractual agreements...." Specifically, she alleged that the meeting prior to her return was not work related. Henson requested that the court hold a hearing to determine the issue.

On June 20, 1990, the district court granted partial summary judgment on the common law tort claims after allowing the United States to substitute itself for Earls on some of the counts. The court held that Earls was acting within the scope of his employment because the meeting was work related in that it advised Henson's co-workers about her return from medical leave. Therefore, these claims against the United States must be pursued under the Federal Tort Claims Act which requires an administrative, not judicial, procedure. The district court, however, noted that the Federal Tort Claims Act provides no remedy for the claims of slander and interference with the employment contract, thus the district court held that these claims may be pursued against the individual employee. These torts were then dismissed under the theory of absolute immunity. The district court did not rule on the Privacy Act claim because it held that the parties deserved more time for discovery before addressing the issue and, further, stated that the issue could be raised in a subsequent motion for summary judgment.

On November 13, 1990, NASA renewed its motion for summary judgment on the Privacy Act count. NASA claimed that Henson had failed to allege that the information divulged came from a record within a system of records. NASA claimed that if the information came from a record within a system of records then the divulsion was permissible under an exception which allows divulsion to employees who need to know. NASA also claimed that Henson had not alleged that the action was intentional or willful or that Henson had not demonstrated that she was entitled to damages. In response, Henson provided the affidavit of Dr. Gulan who stated that NASA maintains a system of records for workers' compensation claims and that he revealed information from Henson's workers' compensation file to the staff. Dr. Gulan stated that he revealed the information to the entire branch, not just people who worked directly and closely with Henson. Henson claimed that Earls ordered the release in retaliation for her contradictory remarks about asbestos...

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