Abernethy v. IRS

Decision Date20 September 1995
Docket NumberCivil A. No. 1:94-CV-234-FMH.
Citation909 F. Supp. 1562
PartiesLynn D. ABERNETHY, Jr., Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
CourtU.S. District Court — Northern District of Georgia

Benjamin A. Land, Buchanan & Land, Columbus, Georgia, for plaintiff.

Sharon Douglas Stokes, Lori M. Beranek, Office of the United States Attorney, Northern District of Georgia, Atlanta, Georgia, and Robert S. Attardo, phv-U.S. Atty., United States Department of Justice, Tax Division, Washington, DC, for defendant.


HULL, District Judge.

This matter is before the Court on Plaintiff's Motion for Partial Summary Judgment 16-1 and Defendant's Motion for Summary Judgment 17-1. The parties agree that the principal facts are not in dispute and that their Motions present questions of law. After reviewing the record and hearing oral argument from counsel for the parties, the Court finds as follows.


Plaintiff Lynn D. Abernethy, Jr. is an employee of the Defendant Internal Revenue Service ("the IRS"). In January, 1992, Plaintiff held the position of Group Manager of the Estate and Gift Tax Group, Examination Division, in the Atlanta District. Plaintiff claims the Defendant, as his employer, violated the Freedom of Information Act, 5 U.S.C. § 552 (1988), and the Privacy Act, 5 U.S.C. § 552(a) (1988), by withholding certain documents from the Plaintiff, by illegally maintaining other documents, and by improperly disclosing the contents of certain documents.

A. Senator Sent Inquiries About Plaintiff to IRS

On February 7, 1992, Senator Sam Nunn forwarded to the IRS an anonymous letter, which his office had received, alleging that Plaintiff was a white supremacist. Attached to the anonymous allegation, and forwarded by Senator Nunn's office to the IRS, were copies of (1) a Federal Times newspaper article which quoted Plaintiff on the subject of reverse discrimination, and (2) a "Notice of Potential Class Action Complaint" posted by Plaintiff on a General Services Administration bulletin board in the IRS's Atlanta offices. Abernethy Dep.Tr., Exs. 1 & 2.

In response to Senator Nunn's letter, the IRS, through Paul Williams, the District Director for the Atlanta District, ordered an investigation into whether Plaintiff's personal views interfered with his responsibilities as a manager. An investigatory panel was convened. Plaintiff's performance appraisals were reviewed by the members of the investigatory panel and no one else.

On March 2, 1992, outside the IRS offices, District Director Paul Williams allegedly told another IRS employee, Louis Sheffield, that Plaintiff was being investigated, and that the investigation pertained to allegations of E.E.O. violations. According to Sheffield, Williams eventually again told Sheffield that Plaintiff was the subject of the investigation, and that the investigation involved "E.E.O. type allegations." Sheffield Dep.Tr. at 19-20.

On March 12, 1992, District Director Paul Williams reportedly made a similar statement in the presence of Glenn Misinco, another IRS employee. Misinco claims that he was in his IRS office in Macon, Georgia, speaking with his supervisor, Ronnie Smith, when Paul Williams arrived. Misinco testified that Williams "made certain comments directed basically toward Ron Smith ... about an investigation that was fixing to commence, or maybe had already commenced, regarding some E.E.O. complaints concerning Lynn Abernethy." Misinco Dep.Tr. at 9-10. Paul Williams denies that he ever made the alleged statements to Louis Sheffield and Glenn Misinco. However, for purposes of these summary judgment motions, the parties agree the Court should assume these statements were made.

On March 13, 1992, the investigatory panel reported that any evidence of purported discrimination by Plaintiff was inconclusive. On March 30, 1992, IRS District Director Paul Williams wrote Senator Sam Nunn to advise about the investigatory panel's findings.

B. E.E.O. Complaint Against Plaintiff

In 1993, Jennifer Susan Clark, an attorney in the Estate and Gift Tax Group, Examination Division, in Atlanta, Georgia, filed an E.E.O. informal class complaint alleging that Plaintiff had created a working environment hostile to females. The E.E.O. Class Complaint Counselor for the Atlanta District gathered information concerning the Clark matter, including affidavits from current and former IRS employees.

IRS District Director Paul Williams appointed a five-member panel to review the Clark complaint and the file created by the E.E.O. Counselor and to make a recommendation for dealing with the matter. Judith B. Tomaso, the Acting Assistant District Director for the Atlanta District, was a member of the panel. After reviewing the file, the panel concluded that Plaintiff continuously and systematically harassed female employees, and recommended that Plaintiff be reassigned to a non-supervisory position.

On June 7, 1993, Ed Goss informed Plaintiff that he was being removed from management and reassigned to the position of Staff Attorney within the Estate and Gift Tax Group in Atlanta, Georgia. That day, Plaintiff informed the employees in the Estate and Gift Tax Group that he was being removed as their manager and the reason for his removal. Despite removal, Plaintiff's salary was not changed.

During a subsequent discussion between Paul Williams and Ed Watts concerning a "revolt" (being led by two managers who worked under Watts) over the decision to remove Plaintiff Abernethy from management, Williams stated that the Clark file supported the conclusion that Plaintiff had created a hostile working environment, and that is why Plaintiff was removed from management.

C. Plaintiff's Freedom of Information Act and Privacy Act Requests
1. Count One: March, 1992 Investigation

Between March 2, 1992 and October 25, 1993, Plaintiff made numerous requests under the Freedom of Information Act ("F.O.I.A.") and the Privacy Act for access to documents related to the March, 1992 investigation and the June, 1993 reassignment. In response to Plaintiff's requests, the Defendant initially withheld ninety-six (96) pages of documents in full, withheld eight (8) pages in part, and released the remainder of the records responsive to Plaintiff's requests. On April 14, 1992, Plaintiff filed an administrative appeal of the partial denial of his requests with the National Office of the IRS. By letter dated January 11, 1994, the Office of Chief Counsel, Disclosure Litigation, denied Plaintiff's appeal.

On January 27, 1994, Plaintiff filed this Complaint to obtain the withheld documents. Subsequent to the filing of the Complaint, Defendant released all of the records previously withheld from the Plaintiff which are responsive to Plaintiff's requests.

2. Count Two: 1993 Reassignment to Staff Attorney

On June 8, 1993 and October 25, 1993, Plaintiff made requests seeking access to records pertaining to and supporting the IRS's decision to reassign the Plaintiff to the position of staff attorney. The documents used by the IRS to determine that Plaintiff had created a working environment hostile to females consisted entirely of the documents contained in the E.E.O. Informal Class Complaint Counseling Report file. This file contains one hundred fifty-seven (157) pages of records.

Defendant IRS's original response to Plaintiff's June 8, 1993 request was to withhold all one hundred fifty-seven (157) pages in full. The Defendant withheld information pertaining to the 1992 and 1993 investigations of the Plaintiff, including statements provided by Abernethy's subordinates and former subordinates, based, in part, on 5 U.S.C. § 552(b)(6) and (7)(C).

On August 3, 1993, attorney Benjamin A. Land, on Plaintiff's behalf, filed an administrative appeal of the denial of the June 8 request. The Defendant had not processed this appeal when Plaintiff filed this Complaint.

Subsequently, Defendant released in full all but five (5) pages of the records contained in the E.E.O. Informal Class Complaint Counseling Report file. The Defendant withheld the name of a third-party taxpayer from each of the five (5) pages which were released in part, pursuant to 5 U.S.C. § 552(b)(3), in conjunction with Internal Revenue Code Section 6103.

The Defendant decided to release the two hundred sixty-one (261) pages of records only after the Defendant learned that the information which Defendant sought to protect had already been obtained by the Plaintiff pursuant to Plaintiff's requests for the production of documents in the Individual Right of Action Appeal and E.E.O. actions brought by the Plaintiff against the Defendant.

After the parties filed summary judgment motions in this action, the Defendant also released to Plaintiff a copy of the settlement agreement in the Clark E.E.O. informal class action which resulted in Plaintiff's removal from management.

D. Count Three: Location of Documents Plaintiff Wants Expunged From All IRS Files

While Plaintiff now has obtained copies of all requested documents, Plaintiff also complains in Count Three that three specific documents in Defendant's files should be removed entirely from all IRS files: (a) the Federal Times newspaper article; (b) a "Notice of Potential Class Action Complaint" posted by Plaintiff on a bulletin board at Plaintiff's office building; and (c) a "Notice of Organizational Meeting" posted by Plaintiff on a bulletin board at Plaintiff's office building.

Copies of the July 8, 1991 Federal Times newspaper article are contained in four files in the IRS Problem Resolution Office in Atlanta, Georgia. Senator Nunn wrote two letters to the IRS, with copies of the Federal Times article attached to both letters. Consequently, copies of the article are contained in two files pertaining to the congressional communications from Senator Nunn.

A copy of the "Notice of Potential Class Action Complaint" which Plaintiff posted in the IRS building in January, 1992 is contained in one file...

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