Federal sector case vs. Smithsonian

The U.S. District  Court for the District of Columbia recently issued a decision involving a former employee of the Smithsonian, who had gender and disability discrimination claims.  There are two interesting aspects of the decision: (1) the employee need not do a formal EEO report with the agency's EEO officer in order to comply with the 45 day reporting requirement, as long as she sufficiently places the agency on notice; and (2) although the United States gets substituted as the defendant on the plaintiff's common-law tort claims against two supervisors per the Westfall Act, the court refuses to dismiss the invasion of privacy claim under the Federal Tort Claims Act, since that tort is not specifically enumerated as non-justiciable, so that there is no sovereign immunity (in contrast to defamation and other enumerated torts).

The decision is online at this link, and some excerpts follow:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv1886-16

 

Klugel v. Small, No. 2006 CV 1886 (D.D.C. Oct. 26, 2007)

Doratha Klugel, a former employee of the Smithsonian Institute ("Smithsonian"), brings this action against Lawrence M. Small, in his official capacity as the Secretary of the Smithsonian, alleging claims of sex and disability discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Rehabilitation Act of 1973, 29 U.S.C. § 720 et seq. ("Rehabilitation Act"), as well as tort causes of action for invasion of privacy and defamation. Klugel also asserts the tort causes of action against two Smithsonian employees. Before the court is defendants' motion to dismiss or, in the alternative, for summary judgment, and to substitute the United States as the sole defendant for Klugel's tort claims [# 9]. Upon consideration of the motion and the record of this case, the court grants the motion in part and denies it in part. . . .

. . . The D.C. Circuit has not addressed the meaning of the phrase "initiate contact with a Counselor." Other courts, however, have done so and have adopted the EEOC's interpretation of the phrase. . . . Under the EEOC's interpretation, an employee who believes that she has been the subject of discrimination must timely (1) contact an agency official "logically connected" with the EEO process (not necessarily a Counselor) and (2) demonstrate an intent to begin the EEO process. . . .

This court finds the rationale of the courts that have adopted the EEOC's interpretation to be persuasive and shall do likewise for several reasons. First, the phrase "initiate contact" is ambiguous, and where a regulation is ambiguous, the court should defer to the agency's interpretation. Lane, 2007 WL 2007493, at *4 ("when a regulation is ambiguous . . . courts should defer to an agency's interpretation") (quotations omitted) (citing Christensen v. Harris County, 529 U.S. 576 (2000)). Second, the Smithsonian's position that an employee must directly contact an EEO counselor in order to comply with 29 C.F.R. § 1614.105(a)(1) would inappropriately turn the informal counseling requirement into an unwarranted procedural hurdle. An employee should not be powerless to pursue an EEO complaint simply because she mistakenly reports her complaint to the "wrong" agency employee even though she has every intent of pursuing the EEO process.

[Sovereign Immunity issue]

. . . Thus, the United States argues that because Klugel's invasion of privacy claims arise out of the same nucleus of facts as her defamation claim, it is immune from her invasion of privacy claim as well. The position of the United Sates cannot be sustained.

To determine whether a non-enumerated claim "arises out of" an enumerated claim, the court must examine the actual conduct upon which the claims are based. Kugel v. United States, 947 F.2d. 1504, 1507 (D.C. Cir. 1991) (the court must "scrutinize the alleged cause of [plaintiff's] injury"); Truman v. United States, 26 F.3d 592, 595 (5th Cir. 1994) ("the focus of the inquiry is on the conduct on which [plaintiff] bases her claim."). An examination of the tort claims here reveals that they do not arise from the same underlying conduct. While there are several different kinds of invasion of privacy claims, Klugel alleges invasion of privacy by intrusion on seclusion. That is, she alleges that defendants asked her unreasonable questions about her boyfriend and about her sexuality, and that these questions intruded on her private affairs. This is different than the alleged conduct underlying her defamation claim. The conduct underling the defamation claim is that the employees involved with the Inspector General's investigation wrongly disseminated information about her. While there is some factual overlap between the two claims - both involve information about Klugel - the "partial overlap . . . does not support the conclusion that if one is excepted [under the FTCA] the other must be as well." Block v. North Dakota, 460 U.S. 273, 299 (1983). Therefore, there is no basis to dismiss Klugel's invasion of privacy claim on sovereign immunity grounds.

Alan R. Kabat, Bernabei & Wachtel, PLLC