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SHANNON v. GE

January 28, 1993

JOHN P. SHANNON, Plaintiff,
v.
GENERAL ELECTRIC COMPANY, UNITED STATES DEPARTMENT OF ENERGY, UNITED STATES DEPARTMENT OF ENERGY OFFICE OF THE INSPECTOR GENERAL and the UNITED STATES OFFICE OF PERSONNEL MANAGEMENT, Defendants.


Scullin, Jr.


The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.

Memorandum-Decision and Order

 Introduction

 The plaintiff, a retired employee of defendant General Electric Company [hereinafter referred to as "GE"], filed the above-captioned lawsuit on May 29, 1992. He seeks declaratory, injunctive and monetary relief for violations of the Privacy Act of 1974, 5 U.S.C. § 552, and for violations of his constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) and its progeny. In his complaint, the plaintiff asserts seventeen causes of action as follows (numbered as they are numbered in the complaint), the first sixteen being alleged as violations of the Privacy Act and the last two being violations of the Bivens-type:

 1) against DOE and DOE-IG: for the intentional and willful violation of the Privacy Act in releasing to GE the Schenectady Nuclear Reactors [hereinafter referred to as "SNR"] investigation report or, alternatively, for failing to establish procedures to ensure the privacy of such reports, causing damages including severe emotional harm (Complaint at PP 60-67);

 2) against DOE and DOE-IG: for the intentional and willful violation of the Privacy Act in releasing to GE the Abstract Report or, alternatively, for failing to establish procedures to ensure the privacy of such reports, causing damages including severe emotional harm (Complaint at PP 66-73);

 3) against GE: for the intentional and willful violation of the Privacy Act in releasing to the Headliner, the GE newsletter, the SNR Report or, alternatively for failing to establish procedures to ensure the privacy of such reports, causing damages including severe emotional harm (Complaint at PP 74-80);

 4) against GE: for the intentional and willful violation of the Privacy Act in releasing to the Headliner, the GE newsletter, the Abstract Report or, alternatively for failing to establish procedures to ensure the privacy of such reports, causing damages including severe emotional harm (Complaint at PP 81-86);

 5) against GE: for the intentional and willful violation of the Privacy Act in releasing to the press (in a press release), the Abstract Report or, alternatively for failing to establish procedures to ensure the privacy of such reports, causing damages including severe emotional harm (Complaint at PP 87-92);

 6) against GE: for the intentional and willful violation of the Privacy Act in releasing to the press (in a press release), the SNR Report or, alternatively for failing to establish procedures to ensure the privacy of such reports, causing damages including severe emotional harm (Complaint at PP 93-98);

 7) against GE: for the willful and intentional violation of the Privacy Act in maintaining an inaccurate personnel file on plaintiff, specifically with respect to the January 10, 1986 letter, causing damages including severe emotional harm (Complaint at PP 99-112);

 8) against GE: for the willful and intentional violation of the Privacy Act in placing four versions of a derogatory performance appraisal in plaintiff's personnel file between February 12, 1986 and after March 22, 1990 but not before August 7, 1990, causing damages including severe emotional harm (Complaint at PP 113-128);

 9) against GE: for the willful and intentional violation of the Privacy Act in preparing three inaccurate performance appraisals prepared in a period of one and one-half years and in maintaining same in the plaintiff's personnel file with the intention of harassing and embarrassing him in an effort to justify their retaliatory employment decisions, causing damages including severe emotional harm (Complaint at PP 129-141);

 10) against GE: for the willful and intentional violation of the Privacy Act in placing inaccurate performance appraisals, prepared during the period of April 1988 through October 1988, into the plaintiff's personnel file with the intention of harassing and embarrassing him in an effort to justify their retaliatory employment decisions, causing damages including severe emotional harm (Complaint at PP 142-146);

 12) against OPM: for the willful and intentional violation of the Privacy Act in refusing to expunge the plaintiff's personnel file of the inaccurate and derogatory items, which in turn had an impact on the plaintiff's security rating, causing damages including severe emotional harm (Complaint at PP 157-164);

 13) against DOE: for the willful and intentional maintenance of irrelevant, untimely and incomplete personnel records on the plaintiff in violation of the Privacy Act, causing damages including severe emotional harm (Complaint at PP 165-167);

 14) against GE: for the willful and intentional attempt to create false and unfair statements by four GE employees and to maintain same in the plaintiff's personnel file in order to justify the plaintiff's demotion, in violation of the Privacy Act, causing damages including severe emotional harm (Complaint at PP 168-196);

 15) against DOE and DOE-IG: for the willful and intentional breach of duty as contained in Privacy Act, 5 U.S.C. § 552a(e)-(5), to use accurate, relevant and complete data in failing to investigate the plaintiff's complaint, causing damages including severe emotional harm (Complaint at PP 197-202);

 16) against GE: for the deliberate commencement of a campaign to harass, humiliate and discredit the plaintiff in retaliation for his critical report on the Kesselring site, thus violating his constitutional civil rights so as to constitute a violation of Bivens (Complaint at PP 203-208); and

 17) against DOE and DOE-IG: for the participation in the conduct complained of in cause of action no. 16 above (Complaint at PP 209-215).

 Prior to answering the complaint, and prior to any discovery in this matter, the defendants have filed the following motions:

 the federal defendants:

 1) for summary judgment on the first and second causes of action, pursuant to Rule 56 of the Federal Rules of Civil Procedure;

 2) for dismissal of the twelfth, thirteen and fifteenth causes of action, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, on statute of limitations grounds; and

 3) for dismissal of the fifteenth and seventeenth causes of action, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted;

 GE:

 1) for dismissal of the seventh, eighth, ninth, tenth, eleventh and fourteenth causes of action, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, on statute of limitations grounds;

 2) for dismissal of the sixteenth cause of action, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted; and

 3) for sanctions against the plaintiff, pursuant to Rule 11 of the Federal Rules of Civil Procedure.

 The plaintiff has responded to these motions and the defendants have, with leave of court, submitted reply papers. Oral argument was thereafter presented on December 4, 1992 in Albany, New York, at which time this court reserved decision. After due deliberation on the issues presented, the following constitutes the Memorandum-Decision and Order of this court:

 Factual Background

 The plaintiff worked at the Knolls Atomic Power Laboratory [hereinafter referred to as "KAPL"] in Niskaya, New York, from December 1959 until January 1990, at which time he retired. See Complaint at P 4; Federal Defendants' 10J Statement at P 1. KAPL is a laboratory that DOE owns and operates for the purpose of research and for the production of nuclear-powered military craft and nuclear weaponry. GE, pursuant to a contract with DOE, operates KAPL under the direct supervision, control and oversight of DOE. See Complaint at PP 5, 6 & 10; Federal Defendants' 10J Statement at P 2.

 DOE has an office on the KAPL site called Schenectady Naval Reactors (SNR). SNR is staffed by approximately 50 DOE employees who are responsible for the supervision and oversight of GE's operation of KAPL. See Complaint at P 11.

 By the terms of the GE-DOE contract, GE agreed to comply with the provisions of the Privacy Act in all of its dealings with employees at KAPL and to safeguard the disclosure of documents protected by the Privacy Act. See Complaint at PP 12 & 13.

 In 1985, the plaintiff was the Manager of Nuclear Criticality Safety/Industrial Safety and Industrial Hygiene [hereinafter referred to as "Nuclear Criticality"] at KAPL. See Federal Defendants' 10J Statement at P 3. As Manager of Nuclear Criticality, the plaintiff, on November 26, 1985, published a Safety Inspection Report that was, as the plaintiff characterizes it, "very critical" of health and safety conditions at KAPL's Kesselring Site Operations (hereinafter referred to as "Kesselring"]. See Complaint at PP 16, 17; Federal Defendants' 10J Statement at P 4.

 On December 12, 1985, the plaintiff's department received an audit conducted by the Fuel Handling and Storage Safety Council, which the plaintiff contends was manipulated to manufacture a negative impression of the plaintiff and his department in retaliation for his November 26, 1985 Safety Inspection Report. See Complaint at PP 20-21; Federal Defendants' 10J Statement at P 5. The plaintiff responded to this ...


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