United States District Court, M.D. Tennessee, Nashville Division
JOHN A. MULVEY, Plaintiff,
THOMAS E. PEREZ, Defendant.
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
matter is presently before the Court on plaintiff's
motion for partial summary judgment [docket entry 59].
Defendant has filed a response in opposition and plaintiff
has filed a reply. As the issues have been fully briefed, the
Court shall decide the motion without a hearing.
an employment discrimination action. Plaintiff, a former
employee of the Department of Labor (“DOL”),
alleges that he was subjected to discrimination and a hostile
work environment because of his disability, denied medical
leave, and retaliated against, in violation of his rights
under Title VII, the Rehabilitation Act, the Family and
Medical Leave Act, and the Fair Labor Standards Act.
Plaintiff also asserts a claim under the Privacy Act, based
on the alleged disclosure of plaintiff's medical
information by one Labor Department employee to another. In
the instant motion, plaintiff seeks summary judgment on his
Privacy Act claim.
Fed.R.Civ.P. 56(a), summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” “[T]he mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine dispute as to any material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original). Viewing the
evidence in the light most favorable to the opposing party,
summary judgment may be granted only if the evidence is so
one-sided that a reasonable fact-finder could not find for
the opposing party. See Id. at 248-50; Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1478-80 (6th
Cir. 1989). In other words, “[a] material issue of fact
exists where a reasonable jury, viewing the evidence in the
light most favorable to the non-moving party, could return a
verdict for that party.” Vollrath v.
Georgia-Pacific Corp., 899 F.2d 533, 534 (6th Cir.
1990). “The pivotal question is whether the party
bearing the burden of proof has presented a jury question as
to each element of its case.” Hartsel v. Keys,
87 F.3d 795, 799 (6th Cir. 1996).
Privacy Act claim is based on the following allegation:
47. On September 20, 2012, Defendant through its agent,
Theresa Ball, violated the Privacy Act of 1973 and DLMS - 5
Chapter 200, by knowingly and willfully disclosing
Plaintiff's confidential medical information, to include
a list of Plaintiff's confidential prescription
medicines, to a non-management employee, the SOL Time Keeper,
who did not have legal authority, or a need to know, and
without the consent of Plaintiff.
* * *
51. Plaintiff alleges that such was an intentional violation
of the Act made by a high ranking attorney within the
Department of Labor who should have known of the
Department's own policies, rules and regulations.
Compl. ¶¶ 47, 51. In his motion for partial summary
judgment, plaintiff states that on September 20, 2012, he
sent an email to Theresa Ball, the DOL Associate Regional
Solicitor, asking for advice as to how he could take a
medical leave of absence. In this email, plaintiff stated that
his physician had changed one of his medications, and he
named the old and new medications. Ball responded as follows,
copying the “timekeeper, ” Naomi Adams, on the
Please send Joyce Adams, our timekeeper, your list of leave,
by day and type, claimed this pay period on a Form 71 . She
will attempt to determine your estimated leave status. In the
future, please send the timekeeper a copy of all leave
requests and, as I have reminded you in the past, they should
be in the form of a Form 71 and in advance. Make sure it is
clear for each day what type of leave you are requesting.
Include any leave you are requesting for today. As you know
these forms are available on line and you have made use of
the on line forms in the past.
response included plaintiff's email, thereby disclosing
the medication names, and the condition for which they had
been prescribed, to Adams.
elements of plaintiff's Privacy Act claim are that
“(1) information in the form of a record contained in a
system of records; (2) was disclosed by a federal agency; (3)
willfully or intentionally; and (4) the disclosure had an
adverse impact on the plaintiff.” Whyde v. Rockwell
Int'l Corp., 101 F. App'x 997, 999 (6th
Cir. 2004) (citation and internal quotation marks omitted).
Regarding the level of intent required, the Sixth Circuit has
To recover damages, the plaintiff must show that the agency
acted “intentionally” or “willfully,
” which is a standard “somewhat greater than
gross negligence.” White v. Office of Personnel
Management, 840 F.2d 85, 87 (D.C.Cir.1988) (per curiam)
(quotations and citation omitted); see Rose v. United
States, 905 F.2d 1257, 1260 (9th Cir.1990). An agency
acts intentionally or willfully “either by committing
the act without grounds for believing it to be lawful, or
flagrantly disregarding others' rights under the
[Privacy] Act.” Wilborn v. Department of Health
& Human Servs., 49 F.3d 597, 602 (9th Cir.1995)
(quotations and citation omitted); see Andrews v.
Veterans Admin., 838 F.2d 418, 425 (10th Cir.),
cert. denied, 488 U.S. 817, 109 S.Ct. 56, 102
L.Ed.2d 35 (1988).
Mount v. U.S. Postal Serv., 79 F.3d 531, 533 (6th
Cir. 1996). In determining whether the disclosure in question
was made willfully or intentionally, “a court may
consider the entire course of conduct that resulted in the
disclosure.” Beaven v. U.S. Dep't of
Justice, 622 F.3d 540, 551 (6th Cir. 2010). Further,
disclosure is permitted to agency employees “who have a