relationship that is governed by comprehensive and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate to supplement that regulatory scheme with a new financial remedy." Bush, 462 U.S. at 368.
To the same effect, the Court in Chilicky, held that a Bivens action by a Social Security recipient for wrongful termination of benefits was precluded due to the elaborate remedial scheme devised by Congress through Social Security legislation. Chilicky, 487 U.S. at 414.
As the Court stated in Chilicky, the fact that Congress in enacting the remedial legislation, did not provide "complete relief" does not necessitate the creation of a Bivens remedy for the alleged violations. See Chilicky, 487 U.S. at 425.
Thus, I find that, under the rationale of both Bush and Chilicky, the Privacy Act precludes Sullivan's Bivens action against Brown.
III. Privacy Act
Sullivan alleges that the Postal Service violated his rights under the Privacy Act, 5 U.S.C. § 552a, which provides in part that "no agency shall disclose any record which is contained in a system of records .. to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, ...".
The Postal Service contends that Sullivan's claim must fail because: (1) Brown did not "disclose" a Privacy Act record; (2) Brown's telephone call to Sullivan's employer was not the proximate cause of Sullivan's termination; and (3) Brown's action was not intentional and willful.
Although the Postal Service appears to concede that Sullivan's application for employment with the Postal Service was a "record" for purposes of the Privacy Act, it contends, nevertheless, that there was no violation of the Act because Brown did not disclose any information from the application to a third party. The Postal Service attempts to distinguish between disclosing the fact that a record existed and disclosing information contained in the record. I am not persuaded by this argument.
The Privacy Act defines "record" as "...any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name ..." 5 U.S.C. § 552a(a)(4).
As stated above, the Postal Service concedes as it must that the employment application Sullivan completed was a "record" for Privacy Act purposes. See Miller v. United States, 630 F. Supp. 347, 348 (E.D.N.Y. 1986) (material prepared to determine eligibility for federal employment constitutes a "record."); Quinn v. Stone, 978 F.2d 126, 133 (3d Cir. 1992) (a "record" means any item of information about an individual that includes an individual identifier.) Sullivan's name was part of the information contained on the record. Brown disclosed information that a current employee named Sullivan had applied for employment by telephoning the employer and apprising him of that information. It is true that Brown did not disclose any other information from the application but defendants' claim that Brown did not disclose any information is simply incorrect.
"While the [Privacy] Act does not specifically define "disclosure," common sense requires that this term be taken to denote the imparting of information which in itself has meaning and which was previously unknown to the person to whom it was imparted." Harper v. United States, 423 F. Supp. 192, 197, (D.S.C. 1976); See also King v. Califano, 471 F. Supp. 180, 181, (D.C. 1979).
Brown's telephone call to Sullivan's employer during which Brown informed the employer that Sullivan had filed an employment application with the Postal Service had meaning in itself and disclosed to the employer information about Sullivan that he had not previously known. Thus, I find that Brown's action constituted a "disclosure" of a record for the purpose of the Privacy Act. On this summary judgment motion, I am unable to rule as defendants request that Brown's acts did not constitute disclosure of protected information.
Defendants further contend that even if Brown's call constituted an improper disclosure, Sullivan's claim should be dismissed because the disclosure was not the proximate cause of Sullivan's termination from his employment. However, the question of proximate cause is a disputed question of material fact. The record indicates that: Sullivan's employer rated his work "satisfactory" several weeks prior to the decision to terminate him (Deposition of Edward L. Schultz
, June 23, 1995, p. 102); the employer had no intention of terminating Sullivan's employment prior to receiving the telephone call from Brown (Schultz Deposition, p. 119); and the telephone call from Brown was the "ultimate" reason for the employer's decision to terminate Sullivan's employment (Schultz Deposition, p. 114). While it is true that there is also evidence in the record indicating that Sullivan's employer was concerned about Sullivan's work performance prior to Brown's telephone call, given the record before me it is inappropriate on this motion to resolve issues concerning proximate cause.
Lastly, defendants claim that Brown's action was not "intentional or willful." To prevail in an action brought pursuant to the Privacy Act, a plaintiff must prove that "the agency acted in a manner which was intentional or willful." 5 U.S.C. § 552a(g)(4). "The legislative history describes this standard as 'somewhat greater than gross negligence.'" Dowd v. I.R.S., 776 F.2d 1083, 1084 (2d Cir. 1985), quoting Analysis of House and Senate Compromise Amendments to the Federal Privacy Act, 120 Cong. Rec. 40406, 40882 (1974). In the present case, the Postal Service contends that Brown's disclosure was not intentional but rather the result of a mistake. This also is a disputed fact issue. The Postal Service contends that Brown did not have much experience in hiring personnel and was unaware of the rule against contacting the current employer of an applicant without the applicant's consent. Sullivan, on the other hand, contends that Brown's action was intentional and willful as evidenced by the fact that Brown admitted that he knew that the employment application was covered by the Privacy Act; admitted that he had received training concerning the Privacy Act; and admitted that "waiver" forms existed but that he took no steps to obtain a waiver permitting him to contact Sullivan's employer. Brown also acknowledged that the employer's name and telephone number was on the application directly below the box where Sullivan had checked "no" when asked if he was willing to have his current employer contacted.
Whether Brown's disclosure was intentional or willful is a question of fact which cannot be disposed of summarily on the record before me.
I have considered defendants' other arguments in support of their summary judgment motion and find them to be without merit.
The Postal Service's motion for summary judgment on Sullivan's first cause of action alleging a Privacy Act violation is DENIED.
Defendant Brown's motion for summary judgment on Sullivan's second cause of action alleging a violation of his constitutional right to privacy brought pursuant to Bivens is GRANTED. Brown is hereby dismissed as a party defendant in this action.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
November 5, 1996.