The opinion of the court was delivered by: LARIMER
Plaintiff, Rodger R. Sullivan ("Sullivan"), filed a complaint on April 2, 1994, against the United States Postal Service ("Postal Service") and Rodney Brown ("Brown"), a Postal Service employee. Plaintiff claims that the Postal Service violated his rights under the Privacy Act (5 U.S.C. § 552a(b)). Plaintiff also brings a Bivens
claim against Brown alleging that Brown violated Sullivan's constitutional rights by infringing on his right to privacy. Defendants move for summary judgment on both claims. Defendants' summary judgment motion is granted in part and denied in part. The constitutional violation is dismissed but the claim under the Privacy Act may proceed.
The facts as alleged by Sullivan are the following.
Sometime in 1988 Sullivan took a civil service test for employment with the Postal Service. In September, 1993, Sullivan was hired by Lewis General Tires as a management trainee. In late December, 1993, Sullivan received a notice in the mail informing him of an opening at the Postal Service. On or about January 2, 1994, Sullivan completed an employment application with the Postal Service. One part of the application requested the applicant to name his current employer. Sullivan identified Lewis General Tires as his current employer but checked "No" next to that part of the application that asked if the Postal Service could contact his current employer.
Sullivan, along with three other applicants, was interviewed for the position by defendant Brown on January 4, 1994. According to Sullivan, Brown failed to inform the applicants of their rights under the Privacy Act. During the interview, Brown did inform the applicants that he would make his selection for the available position based on test scores, orientation, background and information from employers. After the interview, in spite of Sullivan's instructions to the contrary, Brown contacted Sullivan's employer, Lewis General Tires, and informed them that Sullivan had applied for employment with the Postal Service. According to Sullivan, as a result of the disclosure, he was terminated from his employment at Lewis General Tires on February 17, 1994. He was not hired by the Postal Service.
I. Standards for Summary Judgment
A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). All ambiguities and inferences must be resolved in favor of the non-moving party and all doubts as to the existence of a genuine material issue for trial should be resolved against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).
If, when "viewing the evidence produced in the light most favorable to the non-movant...a rational trier could not find for the non-movant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).
No genuine issue of material fact exists if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party..." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
II. Bivens constitutional action against Brown
Sullivan alleges that Brown violated Sullivan's constitutional right to privacy by disclosing to Sullivan's employer that he had applied for employment with the Postal Service. Under Bivens, an award of money damages for a constitutional violation is permitted where Congress has not expressly prohibited such a remedy and where no special factors counsel hesitation in implying such a remedy. Bivens, 403 ...