Stewart v. Donald L. Evans

• Decision Date: 11 January 2002
• Docket Number: No. 01-5036,01-5036
• Citation: 275 F.3d 1126
• Parties: (D.C. Cir. 2002) Sonya G. Stewart, Appellant v. Donald L. Evans, in his official capacity as Secretary of Commerce, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1126

275 F.3d 1126 (D.C. Cir. 2002)

Sonya G. Stewart, Appellant v. Donald L. Evans, in his official capacity as Secretary of Commerce, et al., Appellees

No. 01-5036

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2001

Decided January 11, 2002

[Copyrighted Material Omitted]

Appeal from the United States District Court for the District of Columbia (No. 00cv01241)

Larry Klayman argued the cause and filed the briefs for appellant.

Kathleen A. Kane, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Marleigh D. Dover, Attorney.

Before: Ginsburg, Chief Judge, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge:

Sonya Stewart, an employee of the Department of Commerce, sued the Secretary of Commerce and two departmental employees, alleging that another employee discriminated against her because of sex by berating her with profanity in a phone conversation, and that when she filed a complaint the Department retaliated against her in various ways, all in violation of Title VII of the Civil Rights Act of 1964. She also alleged that the two employees illegally searched her private documents pertaining to the discrimination complaint in violation of the Fourth Amendment to the Constitution of the United States. The district court granted the defendants' motion to dismiss.

We affirm the judgment of the district court dismissing the Title VII claims -sexual harassment and retaliation -for the reasons stated in the Memorandum Opinion filed by the district court and appended hereto. We reverse the judgment of the district court dismissing Stewart's Fourth Amendment claim, and remand that aspect of the case to the district court for further proceedings.

I. Background

Sonya Stewart, an employee at the Department of Commerce, alleges that Frank DeGeorge, when he was Inspector General of the Department, berated her with a tirade of profanity in a telephone conversation on May 3, 1996. Stewart reported the incident to an equal employment opportunity counselor within the Department and eventually filed a formal complaint. Thereafter the Equal Employment Opportunity Commission investigated the situation, and the Department ultimately notified Stewart that her claim had been rejected.

According to Stewart, between the time she first reported the incident and the time she received the Department's final decision, the Acting General Counsel of the Department, Sue Esserman; the Assistant General Counsel for Administration, Barbara Fredericks; and the Chief of the Employment Law Division, Kathleen Taylor, all engaged in various acts of retaliation against her. Stewart also claims to have kept detailed notes about the initial incident and the acts of retaliation, including notes about "strategies for pursuing her claim." Stewart says she initially kept these notes and related documents in her office at the Department but later agreed to give them to John Sopko, Chief Counsel of the Special Matters Unit, to be kept in part in a safe and in part in a locked cabinet. Stewart claims she agreed to give Sopko the documents only upon being assured that no one, including specifically Fredericks and Taylor, would see them. Fredericks and Taylor knew about this arrangement but nonetheless reviewed the files while Stewart was on sick leave in August, 1998.

In February, 2000 Stewart sued the Department under Title VII for the abusive comments and the retaliation, and sued Fredericks and Taylor under the Fourth Amendment for reading her private papers. The district court granted the defendants' motions to dismiss the claims. The court reasoned that the Civil Service Reform Act, 5 U.S.C. 2301-2305, which established a system of administrative remedies for improper actions by supervisors in the federal workplace, precludes Stewart from recovering under the Fourth Amendment for the allegedly illegal search. The court also ruled that the profane tirade to which she was allegedly subjected did not constitute sex discrimination, and that none of the alleged acts of retaliation constituted an "adverse employment action" under Title VII. Stewart appeals in all respects.

II. Analysis

The Civil Service Reform Act, which identifies certain prohibited "personnel actions" in the federal civil service and creates administrative remedies for the benefit of any employee subjected to such an action, by implication also precludes an aggrieved employee from suing the Government or a fellow employee for damages for engaging in such action. Bush v. Lucas, 462 U.S. 367 (1983). In Bush, the Supreme Court held that an employee of the federal government may not recover damages when his superior improperly disciplines him for exercising his rights under the First Amendment because "such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States," referring to the CSRA. 462 U.S. at 368. The Court reasoned that to "creat[e] ... a new judicial remedy for the constitutional violation at issue" would disrupt the "elaborate remedial system that has been constructed [by the Congress] step by step, with careful attention to conflicting policy considerations." Id. at 388.

Fredericks and Taylor maintain that if the CSRA precludes a Bivens action based upon an alleged violation of the First Amendment, then it must similarly preclude Stewart's Bivens action based upon an alleged violation of the Fourth Amendment. Stewart replies by pointing out that in footnote 28 in Bush the Court explicitly distinguished a warrantless search from a violation of the First Amendment: "Not all personnel actions are covered by this system.... [C]ertain actions by supervisors against federal employees, such as wiretapping, warrantless searches, or uncompensated takings, would not be defined as 'personnel actions' within the statutory scheme." Id. at 385 n.28. Because, Stewart argues, a warrantless search falls outside the condemnation (and, we presume, the approbation) of the statutory scheme, that scheme cannot preclude a Bivens action based upon such a search. Cf. Carlson v. Green, 446 U.S. 14, 20-21 (1980) (holding that the Federal Tort Claims Act does not preclude actions for violation of rights under the Constitution).

A district court in this circuit accepted the precise argument Stewart advances, McGregor v. Greer, 748 F. Supp. 881, 889 (1990), but the Ninth Circuit took the opposite view in Saul v. United States, 928 F.2d 829, 839 (9th Cir. 1991) ("We do not think the footnote [in Bush] was meant to decide whether every allegation that a supervisor has subjected a federal employee to a warrantless search is barred from appeal under the CSRA. Read in context, the footnote indicates only that CSRA remedies, while comprehensive, are not infinitely so"). We agree with the district court in McGregor. The disputed footnote in Bush is appended to the Supreme Court's analysis of the comprehensiveness of the statutory scheme. The Court held that the CSRA precludes a Bivens action based upon a violation of an employee's First Amendment rights because the statute covers such a violation (regardless whether it provides a remedy for it). By noting that a warrantless search is not a "personnel action[ ] ... covered by this system," and stating that such a search does not fall "within the statutory scheme," Bush virtually compels the conclusion that the Act does not preclude a Bivens action for a warrantless search.

Fredericks and Taylor contend that Stewart's lawsuit should be dismissed even if it is not precluded by the CSRA, but their arguments are not persuasive. First, the defendants suggest that Stewart must exhaust her remedies under the CSRA before bringing a Bivens action. This makes no sense: The reason the CSRA does not preclude Stewart's lawsuit is precisely that the statute is not concerned with the conduct of which she complains; we cannot ask Stewart to exhaust an administrative remedy that does not exist.

Second, the defendants maintain that Stewart lacked a legitimate expectation of privacy in the places they searched -or at least that such an expectation was not clearly established -and that the defendants are therefore shielded from liability by a qualified immunity. But the very case Fredericks and Taylor cite in support of this proposition -O'Connor v. Ortega, 480 U.S. 709 (1987 ) -precludes dismissal of Stewart's complaint. O'Connor holds that an unreasonable search in the workplace violates the Fourth Amendment, and that the inquiry into reasonableness must be made on a case-by-case basis. Just as the Court in O'Connor remanded the matter for further proceedings because "the record was inadequate for a determination on motion for summary judgment of the reasonableness of the search and seizure," 480 U.S. at 727, so must we remand this case, which did not even get to the summary judgment stage. Without knowing more about the circumstances surrounding the search, a court simply cannot assess whether it was reasonable.

III. Conclusion

For the foregoing reasons, the judgment of the district court is affirmed in part and reversed in part, and the Fourth Amendment claim is remanded to the district court for further proceedings.

So ordered.

APPENDIX

Sonya G. Stewart, Appellant

v.

William Daley, in his official capacity as Secretary of Commerce, et al., Defendants

OPINION

February 6, 2001

HUVELLE, District Judge.

MEMORANDUM OPINION

Before the Court is defendant's Motion for Judgment on the Pleadings, plaintiff's Opposition and defendant's Reply. Having considered the pleadings, the Court concludes that defendant's motion should be granted and the above complaint shall be dismissed with prejudice on the grounds that plaintiff has...