Thompson v. Department of State

• Decision Date: 26 September 2005
• Docket Number: No. Civ.A. 03-2227 (ESH).,Civ.A. 03-2227 (ESH).
• Citation: 400 F.Supp.2d 1
• Parties: Jill THOMPSON, Plaintiff, v. DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

400 F.Supp.2d 1

Jill THOMPSON, Plaintiff, v. DEPARTMENT OF STATE, Defendant.

No. Civ.A. 03-2227 (ESH).

United States District Court, District of Columbia.

September 26, 2005.

COPYRIGHT MATERIAL OMITTED

William T. Irelan, Freideman, Irelan, Ward & Lamberton, P.C., Washington, DC, for Plaintiff.

Peter Blumberg, United States Attorney's Office, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION¹

HUVELLE, District Judge.

Plaintiff is employed as a Foreign Service Officer for the Department of State ("the Department"). She claims that her employer violated the Privacy Act, 5 U.S.C. § 552a et seq., while investigating allegations that plaintiff's supervisor had promoted her career to the detriment of others as a result of his romantic involvement with her. The parties have cross-moved for summary judgment. For the reasons set forth below, the Court concludes that defendant's motion for summary judgment should be granted and plaintiff's cross-motion should be denied.

BACKGROUND

Plaintiff worked in the Office of International Financial Services ("IFS") within the Bureau of Financial Management Policy ("FMP") on a two-year tour of duty starting October 16, 2000. (Def.'s Resp. to Pl's Rule 7(h) St. ["Def.'s Resp."] ¶¶ 1-2.) Beginning in early 2001, two co-workers in IFS began complaining to FMP senior management that plaintiff and her supervisor were romantically involved and that this relationship was having an adverse impact on the office. According to these employees, the supervisor was transferring work assignments from one of them to plaintiff and singling plaintiff out for other benefits, such as assigning her to be supervisor over the complaining employees and giving her an office instead of a cubicle. (Def.'s Resp. ¶ 7; see Def.'s Mot., Ex. 3 (Report of Investigation) ["ROI"] at 2-4, 8-9.) They also alleged that the supervisor became hostile towards anyone who expressed disagreement with plaintiff and that his relationship with plaintiff otherwise contributed to the office's dysfunctionality. For instance, one coworker claimed that the time that plaintiff and her supervisor spent together both in and out of the office made it difficult to approach either of them with questions. Because both would "disappear incommunicado from the office ... [,] no one knew what time key issues and meetings were occurring." (See ROI at 9.) Further, the allegations suggested that plaintiff's supervisor had used federal funds to accompany plaintiff on business trips for personal reasons. (See id. at 3, 10.)²

In response to these allegations and based on the advice of the Office of Diplomatic Security ("DS"), the Bureau of Human Resources ("HR"), and other offices within the Department, the FMP Executive Office initiated an inquiry in August or September 2001. (Def.'s Resp. ¶¶ 8-9.) The Executive Director of FMP, William Todd, and a human resources specialist, Helen Driver, reviewed e-mail messages that had been retrieved from the supervisor's office mailbox, solicited written memoranda from the two coworkers who had initially complained (see Def.'s Mot., Ex. 1 [Coworker 1 Mem.]; Pl.'s Reply, Ex. 14 [Coworker 2 Mem.] ), and questioned another employee about personal photographs plaintiff had allegedly sent her supervisor at the office. (See Def.'s Mot., Ex. 4 ["Driver Dep."] at 64-65.) Todd soon halted this inquiry in response to the supervisor's demands that it be conducted by an independent office.

DS agreed to resume the investigation following discussions involving HR, the Office of Civil Rights ("OCR") and the Inspector General's Office, and at the specific request of OCR Director Barbara Pope.³ (See Def.'s Mot, Ex. 5 ["Rolph-O'Donnell Dep."] at 23; Pl.'s Opp'n, Ex. 12 ["Pope Dep."] at 20.) DS assigned the investigation to Special Agent Thomas Scanlon, who began his interviews in October 2001. (Def.'s Resp. ¶ 19.) The investigation concerned whether plaintiff and her supervisor were in fact romantically involved, how their relationship had impacted the work environment, and whether they had conspired to promote plaintiff's career at the expense of others in the office. (See ROI at 1.) Although plaintiff was not originally a subject of the investigation, Scanlon added her as a subject when information surfaced suggesting that she may have collaborated with her supervisor to obtain the work responsibilities of other employees. (Scanlon Dep. at 33-34.)

At the time the DS investigation began in early October, plaintiff was on medical leave due to a brain hemorrhage.⁴ Upon plaintiff's return to work in November 2001, Pope arranged for plaintiff to be placed on a two-week detail in the HR Executive Office rather than returning to IFS. (Def.'s Resp. ¶¶ 15-16; Pl.'s Opp'n, Ex. 13.) According to defendant, the detail was arranged to ensure the integrity of the investigation and to respond to plaintiff's complaints that the atmosphere in IFS was so stressful as to pose a threat to her health. (Def.'s Reply at 24.) Plaintiff disputes this explanation, claiming that the detail was merely a "pretext to dispense with Plaintiff and leave her without a job," as evidenced by its duration of over three months instead of the intended two weeks.⁵ (Pl.'s Reply at 17.)

During the investigation, Scanlon reviewed the two complaining employees' statements and e-mail messages between plaintiff and her supervisor (Def.'s Mot., Ex. 8) and interviewed 15 witnesses. (See ROI at 1-35.) After completing all witness interviews, Scanlon interviewed plaintiff in the company of her lawyer on November 26, 2001. (Id. at 36.) Scanlon provided plaintiff with a "Warning and Assurance" form at the beginning of the interview, which she executed. (See Scanlon Dep. at 36; Def.'s Mot., Ex. 7.) The investigation concluded on December 6, 2001, with the issuance of a 75-page ROI, which contained tentative findings and two separate binders of supporting documents. (Def.'s Resp. ¶ 46.) The ROI concluded that "[b]ased on E-mails and employee interviews there [was] a strong likelihood that [plaintiff and her supervisor] had a relationship, which negatively impacted the office and other employees." (ROI at 74.)

At the conclusion of the investigation, FMP provided a copy of the ROI to OCR. (Def.'s Resp. ¶ 55; ROI cover page.) Plaintiff alleges that the ROI or other information concerning the investigation was also placed in her security file. (See Pl.'s Rule 7(h) St. ¶ 68 (claiming she was questioned about the investigation in her security update interview).) Finally, DS also forwarded a copy of the ROI to the Foreign Service Grievance Board ("FSGB") for adjudication of a grievance filed by plaintiff (id. ¶ 65), since the report itself was one of the issues raised by plaintiff in her grievance. (See Pl.'s Opp'n, Ex. 4 ["FSGB Op."] at 27 ("Grievant contends the ROI is riddled with errors, misrepresentations and prejudicial information.").)

On April 22, 2002, HR proposed to suspend plaintiff for three workdays without pay for allegedly making false or misleading statements during the DS investigation. (Def.'s Mot., Ex. 10.) After consultation with plaintiff and review of her written response to the disciplinary letter, HR mitigated this sanction to a Letter of Admonishment for an "inappropriate ... volume of e-mails ... that at best could be viewed as suggestive in tone." (Def.'s Mot., Ex 12 at 1.) This letter was to be maintained by the Office of Employee Relations for one year. (Id. at 2.)

State Department regulations require that all employees shall "[s]ee that personal information about individuals is properly safeguarded and protected from unauthorized disclosure, e.g., use of locked file cabinet, password protected systems." (Pl.'s Reply, Ex. 19 (5 Foreign Affairs Manual ("FAM") § 462(a)(7)).) Despite these practices, plaintiff found that the suspension letter and a copy of the ROI, both in a sealed envelope, along with two binders containing attachments to the ROI, had been left on her cubicle chair while she was out of the office on vacation. (Pl.'s Opp'n, Ex. 26 ["Thompson Dep."] at 174-75.) Although defendant claims that plaintiff consented to the delivery to her empty cubicle, plaintiff disputes this statement. (See id.; Def.'s Mot., Ex. 13 ["Coviello Decl."] ¶ 5.)

During the investigation, plaintiff was suffering from ongoing health problems. Letters from her doctors requested that her office make all necessary efforts to shield her from stressful situations that might aggravate her physical condition.⁶ (See, e.g., Def.'s Reply, Ex. 4; Pl.'s Opp'n, Ex. 17.) According to defendant, the Department became concerned as a result of these communications that plaintiff's medical problems (particularly her inability to handle stress) would impact her eligibility for security clearance. As a result, defendant responded to plaintiff's neurologist, Dr. Sam Oraee, with a request that he send additional, detailed medical information to Dr. Athena Moundalexis at the Department. (Pl.'s Opp'n, Ex. 20 ["Def.'s Resp. to Interrogatories"] No. 8.) Defendant solicited this information directly from Dr. Oraee without plaintiff's knowledge or consent. (See id., Ex. 19 (Letter from Caron A. McConnon, Chief, Personnel Security/Suitability Division, DS to Dr. Sam Oraee, Dec. 7, 2001) ["McConnon Letter"].) The record is unclear as to whether Dr. Oraee ever provided the requested information to the Department. Although plaintiff presents an envelope addressed to Dr. Moundalexis from Dr. Oraee (id., Ex. 22 (postmarked Dec. 22, 2001)), she also told her lawyer upon her discovery of the letter, that Dr. Oraee "did not respond because to do so would have violated doctor-patient confidentiality." (Id., Ex. 49.) Plaintiff discovered the McConnon letter in her doctor's files while seeking medical information to apply for a "reasonable accommodation" in early 2002. (Id., Ex. 46 ["Thompson Aff."] ¶ 3.) She asserts that this discovery triggered the onset of anxiety...