Pippinger v. Rubin

• Decision Date: 05 November 1997
• Docket Number: No. 96-8057,96-8057
• Citation: 129 F.3d 519
• Parties: , 13 IER Cases 705, 97 CJ C.A.R. 2685 John PIPPINGER, Plaintiff-Appellant, v. Robert E. RUBIN, * Secretary of the United States Treasury, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 519

129 F.3d 519

39 Fed.R.Serv.3d 691, 13 IER Cases 705,

97 CJ C.A.R. 2685

John PIPPINGER, Plaintiff-Appellant, v. Robert E. RUBIN, ^* Secretary of the United

States Treasury, Defendant-Appellee.

No. 96-8057.

United States Court of Appeals, Tenth Circuit.

Nov. 5, 1997.

Charles M. Pratt, Denver, CO, argued the cause, for appellant.

Annette M. Wietecha, United States Department of Justice, Washington, DC, argued the cause, for appellee. Gilbert S. Rothenberg assisted on brief.

Before ANDERSON, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Because of a romantic relationship with a subordinate, Plaintiff-Appellant John Pippinger was temporarily suspended from his job as an Internal Revenue Service ("IRS") branch manager. Several IRS employees were involved in helping the local IRS District Director reach the decision to suspend Pippinger. Eventually, many IRS employees in the district knew why Pippinger was suspended.

Before Pippinger's suspension was carried out, Pippinger's supervisor Patrick Schluck got into trouble with the IRS because he too had a romantic relationship with a subordinate. During the depositions and proceedings pertaining to Schluck's case, Pippinger's case was discussed and the IRS disclosed information from records of Pippinger's case to Schluck and his attorneys.

Pippinger sued the IRS, alleging violations of the Privacy Act of 1974, 5 U.S.C. § 552a (1994). The district court granted summary judgment in favor of the IRS. Pippinger appeals. Because we agree with the district court that Pippinger's rights under the Privacy Act were not violated, we affirm.

BACKGROUND

This is an appeal from a grant of summary judgment. Thus, the following facts are set forth in the light most favorable to Pippinger, the non-movant. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). All reasonable inferences from the factual record have been drawn in favor of Pippinger.

Since 1978, Plaintiff-Appellant John Pippinger has been employed by the Internal Revenue Service ("IRS") as a manager. In July 1988, IRS employee Lynn Boak ¹ began to work under Pippinger's supervision in the IRS's Cheyenne, Wyoming office. Although both Pippinger and Boak were married to other people at the time, they began having an affair in November 1992.

In December 1992, an anonymous tip was phoned in to the IRS's Internal Security Hotline. This tip alleged not only the existence In March 1993, a second anonymous complaint was made to the Internal Security Hotline. This complaint was nearly identical to the first. At Schluck's request, Pippinger drafted a response to the second complaint which was modeled after Schluck's response to the first complaint. This response, like the first, specifically refuted the allegations of travel improprieties but did not address the issue of a "romantic" relationship between Pippinger and Boak.

                of an affair between Pippinger and Boak, but also that Pippinger was giving preferential treatment to Boak over other employees, and that, without justification, Pippinger had arranged for Boak to travel with him on "official business."   Pippinger was given a copy of a memo reporting this allegation, but was not asked to respond to it.  Pippinger's supervisor, Patrick Schluck, drafted a response for the District Director's signature, denying the allegations of travel improprieties and preferential treatment.  This response did not address the extramarital affair allegation
                

On March 31, 1993, the IRS District Director for Cheyenne retired and was replaced by an acting District Director, James Walsh.

On April 19, 1993, Pippinger informed Schluck that Pippinger and Boak had been romantically involved since November 1992, and were now planning to live together. Schluck then transferred Boak to another group not under Pippinger's supervision. After learning the details of this meeting, acting District Director Walsh wrote to the Officer of Internal Security to explain the situation. Walsh proposed that the matter be closed with no further action.

On June 1, 1993, Stephen Taylor became the new, permanent, IRS District Director in Cheyenne. After reviewing the Pippinger affair with members of his staff, Taylor decided to suspend Pippinger without pay for two days for making misleading statements in response to the hotline complaints and crafting the appearance of a conflict of interest. Specifically, Taylor believed that Pippinger should have revealed the nature of his relationship immediately and taken steps to eliminate the supervisor/subordinate relationship.

On July 12, 1993, Pippinger received written notice of his proposed suspension, and was advised of his right to reply. He replied to Schluck on July 28, 1993. Schluck affirmed Pippinger's suspension, but informed Pippinger of his right to appeal to Taylor.

In August 1993, a short time after Schluck held Pippinger's reconsideration hearing, Schluck also became romantically involved with a subordinate employee. When this affair became known to the District Director, Schluck was quickly demoted from his position as Chief of Exam. A major factor contributing to Schluck's demotion was the fact that, as Pippinger's direct supervisor, Schluck presided over proceedings to discipline Pippinger for having an affair with a subordinate, while Schluck himself was also having an affair with a subordinate.

On September 27, 1993, Pippinger's appeal of his suspension was denied by District Director Taylor. Pippinger then filed an Agency Grievance concerning his suspension with the Regional Commissioner's office.

In November 1993, Pippinger married Boak.

In January 1994, Schluck both resigned from the IRS, and initiated a proceeding through the Merit Systems Protection Board ("MSPB") to have his Chief of Exam position reinstated. ² An MSPB administrative proceeding is similar to a judicial proceeding, and involves a process of discovery. See 5 U.S.C. § 1221(d) (1994). During discovery in Schluck's MSPB proceeding, District Director Taylor, Administrative Officer Stephen Webb, and IRS labor relations specialists Joni Probasco and DeWayne Wicks each gave deposition testimony in which they "disclosed information from ... his personal records concerning John Pippinger." (Affidavit of Patrick Schluck, Aplt.'s App. at 45). IRS attorney Susan Neiser, a private attorney representing Schluck, a court reporter, and In April 1994, Pippinger was granted a hearing by the Regional Commissioner's office. Around that time, Pippinger learned that his case had been discussed, and his and Boak's identities revealed, during discovery in Schluck's MSPB proceeding. At that time, Pippinger also learned that the IRS had been maintaining a computer database known as the "Automated Labor Employee Relations Tracking System" ("ALERTS"). (Id. at 9-10, 154-56). The nationwide ALERTS system was used by the IRS permanently to record all disciplinary action proposed or taken against any IRS employee.

Schluck himself were all privy to this deposition testimony.

The ALERTS system contained two separate entries on Pippinger: one describing Pippinger's alleged misconduct and his proposed two-day suspension; the other documenting Pippinger's appeal through the agency's grievance process. Information from the ALERTS entry pertaining to Pippinger's misconduct and suspension had been disclosed in depositions taken during Schluck's MSPB proceedings.

In May 1994, the Regional Commissioner upheld Pippinger's suspension. Pippinger then requested the appointment of an IRS Grievance Examiner. On November 2, 1994, the Grievance Examiner issued a Report of Findings and Recommendations upholding Pippinger's suspension.

On January 19, 1995, Pippinger sued the Secretary of the Treasury (also referred to in this opinion as the "IRS"), alleging that the IRS had violated the Privacy Act of 1974, 5 U.S.C. § 552a (1994), by maintaining disciplinary records on Pippinger in the allegedly unlawful ALERTS database and also by allegedly disclosing information from those records on several occasions. In a second count, Pippinger also claimed that the IRS had violated his First, Fourth and Fifth Amendment rights to Due Process and Privacy.

The IRS moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Pippinger's constitutional claims, and moved for summary judgment with respect to Pippinger's Privacy Act claims. Before ruling on the IRS's motions, the district court allowed discovery to proceed.

During the course of discovery, Pippinger and several other witnesses were deposed by the IRS. In his deposition, Pippinger admitted that at the time of his two-day suspension, rumors had circulated at his workplace about the cause of the suspension. Pippinger further testified that he was very angry when Taylor first informed him that he would be suspended, and that he told Taylor that "if anybody asked me, I'm going to tell them the truth," including the truth about the fact that he had been suspended for two days. Pippinger also admitted that he had told several of his co-workers about his suspension.

Pippinger faced two obstacles to obtaining discovery from the IRS. First, Pippinger sought informally to interview certain IRS employees who were "friendly witnesses" willing to talk to him, outside the presence of IRS counsel. The IRS, however, prohibited its employees from speaking to Pippinger about Pippinger's case, unless formally deposed. Pippinger filed a Motion to Compel, in which, inter alia, he asked the district court to "order [the IRS] to instruct certain witnesses and potential witnesses that they are not prohibited from meeting with and answering questions posed by [Pippinger] and his counsel outside the formal discovery process." In November, 1995, a magistrate judge denied this aspect of Pippinger's motion. Pippinger v. Secretary of the Treasury, No. 95-CV-17-D (D.Wyo. Nov. 28, 1995) (Order on Plaintiff's Motion to Compel) (Beaman, Mag. J.). Pippinger now appeals this denial.

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