Strong v. Postmaster General U.S. Postal Service

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

OLLEY STRONG,

Plaintiff,

v. // CIVIL ACTION NO. 1:16CV140

(Judge Keeley)

MEGAN J. BRENNAN,

Postmaster General,

Defendant.

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

Pending before the Court is a motion for judgment on the

pleadings or, alternatively, for summary judgment filed by the

defendant, Megan J. Brennan, Postmaster General (“Postmaster

General”) (Dkt. No. 59). Also pending is the report and

recommendation (“R&R”) of the Honorable Michael J. Aloi, United

States Magistrate Judge, recommending that the Court grant the

Postmaster General’s motion for summary judgment (Dkt. No. 77). For

the reasons that follow, the Court ADOPTS the R&R and DISMISSES the

case WITH PREJUDICE.

I. BACKGROUND

A. Factual Background

On May 2, 2015, the plaintiff, Olley Strong (“Strong”), an

African American, was hired by the United States Postal Service

(“USPS”) as a Mail Processing Clerk at the agency’s Eastpointe

STRONG v. BRENNAN 1:16CV140

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facility in Clarksburg, West Virginia (Dkt. No. 60-1 at 11-12; 15).

On August 17, 2015, approximately three months after he began

working at the facility, Strong tendered his resignation to USPS.

Id. at 38-40; Dkt. No. 1-1 at 2. The reason stated on Strong’s

resignation form was that he had found another job (Dkt. No. 60-1

at 38, 124). In this lawsuit, Strong contends that real reason for

his resignation was “the harassing conduct of the defendant and its

agents and employees, whose actions were racially motivated” (Dkt.

No. 49 at 4). See also Part III.B, infra. It is nonetheless

undisputed that, approximately one week after resigning from USPS,

Strong began working as a salesman at a car dealership located in

Morgantown, West Virginia (Dkt. No. 61 at 39-40; 53).

On August 17, 2015, the same day Strong resigned from USPS,

the agency’s Human Resources Office completed his then-pending

background check, which revealed that Strong had a criminal record

that he had previously failed to disclose.1 Because Strong had

already resigned, USPS took no formal action. According to the

amended complaint, however, a former co-worker later informed

1 The USPS requires prospective employees to disclose all

criminal convictions (Dkt. No. 60-1 at 14-15; 103). Strong

testified during his deposition that he did not intentionally

withhold his criminal record during the application process because

he erroneously thought his conviction was too old to matter (Dkt.

No. 61-1 at 20).

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Strong that, shortly after his resignation, Clarksburg Postmaster

Eric Grossa (“PM Grossa”) told several USPS employees that Strong

had been fired for having a criminal record. Strong alleges that

the co-worker also informed him that PM Grossa had shared Strong’s

private personnel file, including records obtained during his

criminal background check, with other employees on multiple

occasions. PM Grossa has denied these allegations (Dkt. No. 1-1 at

2).

B. Procedural Background

Based on alleged discriminatory conduct by PM Grossa, and

concerned for his reputation, Strong filed an Equal Employment

Opportunity (“EEO”) complaint in December 2015, in which he alleged

that USPS had discriminated against him on the basis of his race

(Dkt. No. 1-1 at 1). Specifically, Strong’s complaint alleged that:

(1) On May 23, 2015, he became aware that his car bumper

had been hit in the employee parking lot and management

did not properly investigate it;

(2) In August 2015, and on other unspecified occasions,

PM Grossa told him that he was working too slowly and

threatened to fire him; and

(3) On or around August 19, 2015, after [Strong] had

resigned from his position at the Agency, he learned that

PM Grossa had allegedly disclosed his record to his

former coworkers.

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GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

Id. at 1-2. On January 5, 2016, USPS dismissed Strong’s claim that

management had not properly investigated the damage to his car as

untimely, because he had failed to initiate contact with an EEOC

Counselor within forty-five (45) days, as required by EEOC

regulations. Id. at 2. It further dismissed Strong’s remaining

claims for failure to state cognizable claims. Id. at 3.

On appeal, the EEOC affirmed the dismissal of Strong’s

complaint. Id. In a decision issued on April 19, 2016, the EEOC

found that Strong’s first claim had been properly dismissed for

untimely contact with an EEO Counselor. As to Strong’s second and

third claims, the EEOC agreed that he had failed to state a claim,

because he had not shown that he suffered harm or loss with respect

to a term, condition or privilege of employment for which there is

a remedy. Id. It found that, to the extent Strong was claiming a

hostile work environment, the events described, even if proven to

be true, “would not indicate that [he] had been subjected to

harassment that was sufficiently severe or pervasive to alter the

conditions of [his] employment.” Id. Specifically, the EEOC found

that Strong’s allegation that PM Grossa threatened to fire him and

told him that he was working too slowly represented only one

instance of alleged harassment. Id.

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Finally, as to Strong’s third claim, the EEOC observed that

the alleged discriminatory act, i.e., PM Grossa’s disclosure of his

criminal record, purportedly “occurred after [Strong] left the

Agency and found employment elsewhere,” and, therefore, could not

have impacted the terms and conditions of Strong’s former

employment with USPS.2 It further noted that the privacy-related

concerns raised in Strong’s third claim implicate the federal

Privacy Act, 5 U.S.C. § 552(g)(1), which provides an exclusive

statutory framework governing the disclosure of identifiable

information contained in federal systems of record. Accordingly,

because jurisdiction over alleged violations of the Privacy Act

rests exclusively with the federal courts, the EEOC concluded that

it lacked jurisdiction to consider the claim.

On June 27, 2016, Strong, filed a pro se complaint in this

Court against the Postmaster General and USPS employees Eric

Grossa, James Smith, and Mark Cottrill (Dkt. No. 1). Pursuant to 28

U.S.C. § 636 and LR PL P 2, the Court referred the case to

Magistrate Judge Aloi for initial screening and a report and

recommendation (Dkt. No. 4). On December 15, 2016, the Postmaster

2 On appeal, Strong alleged for the first time that “PM not

only told his former coworkers about his criminal record, but

handed them [his] personnel documentation as ‘proof’ that [he] ‘did

time.’” (Dkt. No. 1-1 at 3).

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GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

General was substituted as the sole defendant in the case (Dkt. No.

42).

On February 28, 2017, by counsel, Strong filed an amended

complaint (Dkt. No. 49),3 asserting claims for (1) violations of

the Privacy Act of 1974, 5 U.S.C. § 522(a) (“Privacy Act” or “the

Act”), (2) constructive discharge under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000(e)–1 et seq. (“Title VII”),

and (3) intentional infliction of emotional distress (“IIED”). Id.

at 6-9. Following discovery, the Postmaster General moved for

judgment on the pleadings or, alternatively, for summary judgment

(Dkt. No. 59).

Now pending is Magistrate Judge Aloi’s R&R recommending that

the Court grant summary judgment on all counts (Dkt. No. 77).

Strong objected to this recommendation (Dkt. No. 80), contending

that disputes of material fact preclude summary judgment as to his

Privacy Act and constructive discharge claims. Id. at 1-2. Strong

also objected to the recommendation that his IIED claim is subsumed

within the Privacy Act. Id. at 2.

3 On December 13, 2016, attorney Michael A. Jacks filed a

notice of appearance on behalf of Strong (Dkt. No. 40).

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II. STANDARDS OF REVIEW

A. Review of the R&R

“The Court will review de novo any portions of the magistrate

judge’s Report and Recommendation to which a specific objection is

made . . . and the Court may adopt, without explanation, any of the

magistrate judge’s recommendations to which the [parties do] not

object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04

(N.D. W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th

Cir. 1983)). Courts will uphold portions of a R&R to which no

objection has been made unless they are “clearly erroneous.” See

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315

(4th Cir. 2005).

B. Motion for Summary Judgment

Summary judgment is appropriate where the “depositions,

documents, electronically stored information, affidavits or

declarations, stipulations . . ., admissions, interrogatory

answers, or other materials” show that “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). When ruling on a motion

for summary judgment, the Court reviews all the evidence “in the

light most favorable” to the nonmoving party. Walker v. Mod-U-Kraf

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Homes, L.L.C., 775 F.3d 202, 207 (4th Cir. 2014). The Court must

avoid weighing the evidence or determining the truth and limit its

inquiry solely to a determination of whether genuine issues of

triable fact exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986).

The moving party bears the initial burden of informing the

Court of the basis for the motion and of establishing the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the

necessary showing, the nonmoving party “must set forth specific

facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted).

The “mere existence of a scintilla of evidence” favoring the

nonmoving party will not prevent the entry of summary judgment; the

evidence must be such that a rational trier of fact could

reasonably find for the nonmoving party. Id. at 248–52.

III. DISCUSSION

A. Privacy Act

In Count One of the amended complaint, Strong contends that

the defendant violated the Privacy Act by willfully and

intentionally disclosing his personnel records, including the

results of his criminal background check, to USPS employees (Dkt.

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No. 49 at 6-7). Strong seeks monetary damages under the Act,

alleging that damage to his reputation by the defendant’s “wrongful

dissemination of his private records” has caused him to “suffer

actual financial losses and made it harder for him to earn a living

in his subsequent sales positions” (Dkt. Nos. 49 at 5; 61 at 5).

The Privacy Act prohibits federal agencies from disclosing

their records to any person or to another agency. 5 U.S.C.

§ 552a(b). Section (g)(1)(D) describes an agency’s failure to

maintain an adequate record on an individual and provides a private

cause of action when that person has suffered “an adverse effect”

as the result of a disclosure in violation of the Act. 5 U.S.C.

§ 552a(g)(1)(D); see also Fattahi v. Bureau of Alcohol, Tobacco &

Firearms, 186 F. Supp. 2d 656, 659 (E.D. Va. 2002), aff'd, 328 F.3d

176 (4th Cir. 2003). Thus, to set forth a viable claim under the

Privacy Act, the plaintiff must establish, by a preponderance of

the evidence, the following five elements regarding the allegedly

unauthorized disclosure:

1. That the information allegedly disclosed is covered

by the Act as a “record” contained in a “system of

records”;

2. That the agency disclosed the information;

3. That the disclosure was without plaintiff’s consent

and did not fit within one of the enumerated

exceptions to the anti-disclosure provision;

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4. That the disclosure was willful or intentional; and

5. That the disclosure had an adverse effect on the

plaintiff.

Id. (citing Gowan v. U.S. Dep’t of Air Force, 148 F.3d 1182, 1193

(10th Cir. 1998); Quinn v. Stone, 978 F.2d 126, 131 (3d Cir.

1992)). The parties’ dispute on summary judgment focused on the

fifth element, “adverse effect on the plaintiff” (Dkt. Nos. 60 at

22-24; 61 at 7).

As the Supreme Court observed in Doe v. Chao, 540 U.S. 614,

619 (2004), “breaches of the [Privacy Act] with adverse

consequences are addressed by specific terms governing relief.” The

relevant provision of the Act provides that

(4) [i]n any suit brought under the provisions of

subsection (g)(1)(C) or (D) of this section in which the

court determines that the agency acted in a manner which

was intentional or willful, the United States shall be

liable to the individual in an amount equal to the sum

of—

(A) actual damages sustained by the individual as a

result of the refusal or failure, but in no case

shall a person entitled to recovery receive less

than the sum of $1,000; and

(B) the costs of the action together with

reasonable attorney fees as determined by the

court.

§ 552a(g)(4) (emphasis added).

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At issue in Chao was whether a Privacy Act plaintiff must

prove actual damages to qualify for the minimum statutory award of

$1,000. 540 U.S. at 616. There, the plaintiff brought suit under

the Privacy Act against the Department of Labor (DOL) for

improperly disclosing his Social Security number. Id. at 617. The

Fourth Circuit held that the DOL was entitled to summary judgment,

concluding that the plaintiff had failed to raise a triable issue

of fact about actual damages because he had submitted no

corroboration for his emotional distress claim. Id. The Supreme

Court affirmed, reasoning that “a straightforward textual analysis”

of the Privacy Act required a plaintiff to prove actual damages

from an intentional or willful violation of the Act to qualify for

the award. Id. at 620.

Here, as correctly concluded by Magistrate Judge Aloi in the

R&R, Strong’s claim under the Privacy Act fails for lack of

evidentiary support (Dkt. No. 77 at 10). First, as argued by the

Postmaster General, Strong’s allegations regarding the purported

disclosure of his criminal record relate only to how the disclosure

might impact him in the future and are thus speculative, at best.

When asked how the alleged disclosure has impacted him, Strong

replied that “it would be a form of embarrassment,” and explained

as follows:

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Well maybe I should say this, because, I mean,

leading up to now or moving forward in the future, I

don’t know if it will impact me later or not. You know,

is it possible that I run into somebody later today,

tomorrow, 5, 10, 15 years from now and say, “Oh I

remember you. You’re the guy that had that record. The

postal guy was talking about you.” Sure, it hasn’t

happened today, but is it possible? Sure it is.

...

So, after finding out about this, did it pop in my

head, when I see that postman walking up the street,

heading to my home, I wonder, you know “I wonder if he’s

the one who heard that story?” I wonder if [he] knows

I’ve been in prison? Did that pop in my head? Of course.

(Dkt. No. 60-1 at 50-51) (emphasis added).

Furthermore, Strong admitted that no employer for whom he has

worked or applied to work since his resignation, nor any customers

of the car dealership or the homebuilder for whom he has actually

worked, had ever told him that they knew about his criminal record.

Id. at 120. Strong further admitted that, on the contrary, there

was “no evidence” that any customer, employer, or potential

employer to whom he had applied to work, had learned about his

criminal history “as a result of any acts or omissions by the

Postal Service or its employees.” Id. at 120-21. In fact, when

specifically asked whether “anybody else ever told [him] that they

knew about [his] criminal record” as a result of PM Grossa’s

alleged disclosure, Strong answered: “No.” Id. at 52. Taken

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together, these statements and admissions make clear that, rather

than having been adversely affected by the purported disclosure,

Strong is distressed by the mere possibility that someone might

learn about his criminal record in the future.

Second, Strong has failed to establish any economic loss

caused by the purported disclosure. While Strong generally asserts

that he missed certain automobile, insurance, and child support

payments after his resignation from USPS (Dkt. No. 60-1 at 53-54,

he has provided no evidence to substantiate these claims. Further,

and most critically, Strong has not established that any alleged

economic loss he may have experienced was caused by the defendant’s

purported disclosure. Although Strong asserts that he experienced

various financial difficulties in the months following his

resignation, the undisputed evidence in the case establishes that,

prior to voluntarily resigning from USPS, he had secured gainful

employment as a car salesman in Morgantown, which commenced

approximately one week later. Moreover, Strong has offered no

evidence whatsoever that any of his alleged financial difficulties

were caused by his former employer’s purported disclosure of his

criminal record, as opposed to his new commission-based income or

his decision to move from Clarksburg to Morgantown.

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Thus, despite Strong’s contention that he has alleged “small

. . . [but] significant” economic losses sufficient to survive

summary judgment (Dkt. No. 80 at 1, 3), no evidence corroborates

Strong’s conclusory allegation that PM Grossa’s purported

disclosure of his criminal record caused him to experience any

actual economic loss. Because the record is devoid of any evidence

of tangible consequences stemming from the alleged disclosure, the

Court concludes that Strong has failed to present sufficient

evidence of “actual damages” to survive summary judgment.’

Therefore, because the Privacy Act “guarantees $1,000 only to

plaintiffs who have suffered some actual damages,” and because

Strong has failed to produce evidence sufficient to permit a

rational trier of fact to conclude that he suffered any actual

damages, the Court GRANTS the Postmaster General’s motion for

summary judgment on his Privacy Act claim. Chao, 540 U.S. at 627.

B. Constructive Discharge

In Count Two, Strong alleges that he was subjected to unlawful

acts of racial discrimination while working at USPS and, therefore,

his resignation constitutes a constructive discharge under Title

“In his opposition to the motion for summary judgment, Strong

conceded that the Privacy Act does not authorize general damages

“for pure mental or emotional distress” (Dkt. No. 61 at 7).

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VII (Dkt. No. 49 at 7-8). He specifically contends that he was

forced to leave USPS due to the “intimidating, abusive and hostile”

environment created by the defendant’s “unwelcome, enduring, and

offensive” workplace harassment. Id.

To prove constructive discharge, a plaintiff must at the

outset show that his employer “deliberately made [his] working

conditions intolerable in an effort to induce [him] to quit.” Heiko

v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006)

(citing Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 272

(4th Cir. 2001)). A plaintiff therefore must demonstrate (1) that

his employer's actions were deliberate, and (2) that the working

conditions were intolerable. Id. (citing Honor v. Booz-Allen &

Hamilton, Inc., 383 F.3d 180, 186-87 (4th Cir. 2004)); Munday v.

Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 244 (4th Cir. 1997)). An

employer's actions are deliberate only if they “were intended by

the employer as an effort to force the plaintiff to quit.” Matvia,

259 F.3d at 272. Here, even if Strong could establish that the

defendant deliberately intended to force him to resign, he still

cannot show that his working conditions were objectively

intolerable.

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1. Objectively Intolerable Working Conditions

“Whether an employment environment is intolerable is

determined from the objective perspective of a reasonable person.”

Heiko, 434 F.3d at 262 (citing Williams v. Giant Food Inc., 370

F.3d 423, 434 (4th Cir. 2004)). Notably, “[i]ntolerability is not

established by showing merely that a reasonable person, confronted

with the same choices as the employee, would have viewed

resignation as the wisest or best decision, even that the employee

subjectively felt compelled to resign[;] . . . ‘[r]ather,

intolerability is assessed by the objective standard of whether a

reasonable person in the employee's position would have felt

compelled to resign’—that is, whether he would have had no choice

but to resign.” Blistein v. St. John's College, 74 F.3d 1459, 1468

(4th Cir. 1996) (quoting Bristow v. Daily Press, Inc., 770 F.2d

1251, 1255 (4th Cir. 1985)) (alternations in original).

The burden of proving objectively intolerable conditions is

therefore a heavy one. The Fourth Circuit has made clear that, in

the context of constructive discharge, “[d]ifficult or unpleasant

working conditions” do not qualify as intolerable conditions.

Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). In fact, “[e]ven

truly awful working conditions may not rise to the level of

constructive discharge.” Hill v. Verizon Md., Inc., No.

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RDB–07–3123, 2009 WL 2060088, *13 (D. Md. July 13, 2009); see also

Williams, 370 F.3d at 434 (holding that, even if true, plaintiff's

allegations that her supervisors “yelled at her, told her she was

a poor manager and gave her poor evaluations, chastised her in

front of customers, and once required her to work with an injured

back” did not establish the objectively intolerable working

conditions necessary to prove constructive discharge).

Here, Strong specifically objects to the R&R’s conclusion

“that there is no material factual dispute over his working

conditions, and whether they were objectively intolerable” (Dkt.

No. 80 at 1-2). To support his constructive discharge claim, Strong

alleges that PM Grossa failed to investigate damage to his car,

prevented him from speaking, taking breaks, or having lunch with

the facility’s only other African-American employee, stared at him

disapprovingly, told him he was working too slowly, threatened to

fire him, and fired—and immediately rehired—him on one occasion.

Even if true, when viewed in the light most favorable to

Strong, these allegations do not establish the objectively

intolerable working conditions necessary to prove a constructive

discharge. At most, Strong may have experienced problems or

tensions on the job greater than those experienced by other

employees. However, “[t]he fact that problems and tensions are

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encountered on the job are not enough to establish constructive

discharge.” Bristow, 770 F.2d at 1251. Additionally, “difficult or

unpleasant working conditions” do not qualify as intolerable

conditions, nor are employees “guaranteed a working environment

free of stress.” Heiko, 434 F.3d at 262 (internal citations

omitted). “In short, ‘[d]issatisfaction with work assignments, a

feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable

person to resign.’” Williams, 370 F.3d at 434 (quoting Carter, 33

F.3d at 459).

2. Subjective Perception of Hostility

In his objections, Strong points to the R&R’s purported

failure to consider his subjective perception of hostility at the

USPS facility (Dkt. No. 80 at 3-4). Citing Freeman v. Dal-Tile

Corp., he contends that a court’s “review[] ... of a Title VII

claim under the summary judgment standard has both subjective and

objective parts.” 750 F.3d 413 (4th Cir. 2014). He argues that,

under the subjective component, he has put forth sufficient

evidence of perceived harassment to allow a jury “to consider if

the activities involved created a hostile work environment leading

to his constructive discharge” (Dkt. No. 80 at 6).

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Strong’s reliance on Freeman for this contention is misguided.

First, and foremost, Strong impermissibly conflates his

constructive discharge claim with a pure hostile work environment

claim. While it is true that the “severe or pervasive” element of

a hostile work environment claim “has both subjective and objective

parts,” Freeman, 750 F.3d at 421, hostile work environment and

constructive discharge are separate and distinct legal claims with

differing burdens of proof. See Pa. State Police v. Suders, 542

U.S. 129, 146–47 (2004) (“For a [case of hostile work environment]

to be actionable . . . the offending behavior must be sufficiently

severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment. A

hostile-environment constructive discharge claim entails something

more: A plaintiff who advances such a compound claim must show

working conditions so intolerable that a reasonable person would

have felt compelled to resign.”)(internal citations and quotation

marks omitted).

Indeed, courts have consistently held that the burden of proof

required to establish a claim for constructive discharge is more

stringent than that required to establish a pure hostile work

environment claim. See, e.g.,Fincher v. Depository Trust and

Cleaning Corp., 604 F .3d 712, 725 (2d Cir. 2010) (noting that the

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standard required to establish constructive discharge is “higher

than” the standard for hostile work environment); Spencer v.

Wal-Mart Stores, Inc., 469 F.3d 311, 316 n. 4 (3d Cir. 2006)

(observing that a hostile work environment “will not always support

a finding of constructive discharge” and that constructive

discharge requires “a greater severity or pervasiveness of

harassment than the minimum required to prove a hostile working

environment”). In point of fact, the Fourth Circuit in Freeman

concluded that while “a reasonable fact-finder could find that

there was an objectively hostile work environment based on both

[the plaintiff’s] race and sex,” it further concluded that the

plaintiff had failed nonetheless to “present sufficient evidence to

create a question of fact as to whether . . . her working

conditions at the time she resigned were objectively intolerable.

Id. at 424-25 (affirming district court’s grant of summary judgment

to former employer on plaintiff’s constructive discharge claim).

Thus, where, as here, an alleged constructive discharge stems

from an alleged hostile work environment, the plaintiff “must show

working conditions so intolerable that a reasonable person would

have felt compelled to resign.” Fincher, 604 F.3d 725 (quoting Pa.

State Police, 542 U.S. at 147). For the reasons previously

discussed, and as concluded by Magistrate Judge Aloi, Strong has

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STRONG v. BRENNAN 1:16CV140

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

not presented sufficient evidence to create a question of material

fact as to whether his working conditions at the time he resigned

were objectively intolerable.

Accordingly, the Court concludes that Strong has failed to

establish that the Postmaster General deliberately made his working

conditions intolerable for the purpose of forcing him to resign.

Because Strong cannot establish a viable claim of constructive

discharge, the Court GRANTS the Postmaster General’s motion for

summary judgment as to that claim.

Cc. Intentional Infliction of Emotional Distress

Finally, in Count Three, Strong alleges a claim for IIED based

on “the same actions of Defendant that constituted a breach of the

Privacy Act,” namely, PM Grossa’s alleged disclosure of his

personnel file and criminal record (Dkt. Nos. 49 at 8-9; 80 at 6).

Specifically, Strong alleges that a former co-worker informed him

that, shortly after his resignation, PM Grossa had discussed

Strong’s criminal history with other employees and had left his

personnel file, including his background check, in the break room

for employees to view. Even if, as Strong argues in his objections,

the Privacy Act does not provide the exclusive remedy for a data

breach by a federal agency (Dkt. No. 80 at 6-7), Strong has failed

nonetheless to establish a viable claim for IIED.

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STRONG v. BRENNAN 1:16CV140

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

The Supreme Court of Appeals of West Virginia (“Court of

Appeals”) first recognized a claim for IIED, also known as the tort

of outrage, in Harless v. First Nat’l Bank, 289 S.E.2d 692 (W. Va.

1982). In Harless, the Court of Appeals held, in relevant part,

that “one who by extreme and outrageous conduct intentionally . .

. causes severe emotional distress to another is subject to

liability for such emotional distress.” Id. at 703. Therefore, to

establish a claim for IIED/outrage, a plaintiff must establish:

(1) that the defendant's conduct was atrocious,

intolerable, and so extreme and outrageous as to exceed

the bounds of decency;

(2) that the defendant acted with the intent to inflict

emotional distress, or acted recklessly when it was

certain or substantially certain emotional distress would

result from his conduct;

(3) that the actions of the defendant caused the

plaintiff to suffer emotional distress and;

(4) that the emotional distress suffered by the plaintiff

was so severe that no reasonable person could be expected

to endure it.

Loudin v. Nat'l Liab. & Fire Ins., 716 S.E.2d 696, 705 (W. Va.

2011).

A notoriously difficult fact pattern to prove, the Fourth

Circuit recently commented that “[i]t is difficult to overstate the

high burden of proof required to sustain a tort claim for

intentional infliction of emotional distress/outrage.” Pegg v.

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MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

Herrnberger, 845 F.3d 112, 122 (4th Cir. 2017) (discussing West

Virginia IIED law). Courts demand such "strict proof of

unprecedented and extreme misconduct" in these cases because,

"where no physical injury accompanies the wrong, the tort of

outrage is a slippery beast, which can easily get out of hand

without firm judicial oversight." Tanner v. Rite Aid of W. Va.,

Inc., 461 S.E.2d 149, 157 (W. Va. 1995) (quoting Keyes v. Keyes,

392 S.E.2d 693, 696 (W. Va. 1990)).

In light of the need for judicial oversight, the Court of

Appeals has explained that, in evaluating a defendant's conduct in

an IIED/outrage claim, “the role of the trial court is to first

determine whether the defendant's conduct may reasonably be

regarded as so extreme and outrageous as to constitute the

intentional . . . infliction of emotional distress.” Travis v.

Alcon Labs., Inc., 504 S.E.2d 419, 428 (W. Va. 1998). Critically,

“whether conduct may reasonably be considered outrageous is a legal

question, and whether conduct is in fact outrageous is a question

for jury determination.” Id. The Court of Appeals has further

indicated that it is "almost impossible to define what will make a

case of outrageous conduct. Instead, [the court] will define what

is not on a case-by-case basis." Hines v. Hills Dep't Stores, Inc.,

454 S.E.2d 385, 390 (W. Va. 1994).

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STRONG v. BRENNAN 1:16CV140

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

Viewed objectively and in the light most favorable to Strong,

the allegations in this case, even if true, are “markedly milder

than the kind of conduct courts applying West Virginia law have

found necessary to support an intentional infliction of emotional

distress claim.” Pegg, 845 F.3d at 122. See, e.g., Bell v. Nat’l

Republican Cong. Comm., 187 F. Supp. 2d 605 (S.D. W. Va. 2002)

(allowing IIED claim to proceed where political organization’s

campaign pamphlet labeled plaintiff a rapist and child molester);

Heldreth v. Marrs, 425 S.E.2d 157, 161–62 (W. Va. 1992) (allowing

IIED claim to proceed where husband suffered a heart attack after

witnessing his wife get struck by a car and die). But see Keyes,

392 S.E.2d at 694 (disallowing IIED claim where a family excluded

son from his father's obituary, burial plans, and car ride to the

funeral); Lee v. City of S. Charleston, 668 F.Supp.2d 763, 779

(S.D. W. Va. 2009) (disallowing IIED claim based on a roadside

strip search that exposed arrestee's genitals to the officer).

Insomuch as Strong has put forth unsubstantiated assertions

about PM Grossa’s purported disclosure of his criminal record and

offers no other evidence to support his claim that he was subjected

to outrageous conduct, the Court concludes that PM Grossa’s conduct

cannot be reasonably regarded as so extreme and outrageous to

constitute IIED. Accordingly, because Strong cannot establish a

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STRONG v. BRENNAN 1:16CV140

MEMORANDUM OPINION AND ORDER ADOPTING R&R [DKT. NO. 77] AND

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 59]

viable claim of IIED, the Court GRANTS the Postmaster General’s

motion for summary judgment as to that claim.

IV. CONCLUSION

In summary, for the reasons discussed, the Court:

1. OVERRULES Strong’s objections (Dkt. No. 80);

2. ADOPTS the R&R to the extent consistent with this

Memorandum Opinion (Dkt. No. 77);

3. GRANTS the Postmaster General’s motion for summary Judgment

(Dkt. No. 59);

4. DENIES the Postmaster General’s motion for judgment on the

pleadings (Dkt. No. 59);

5. DENIES AS MOOT the Postmaster General’s motion to strike

(Dkt. No. 63) and motions in limine (Dkt. Nos. 64, 65); and

6. DISMISSES this case WITH PREJUDICE, and ORDERS that it be

STRICKEN from the Court’s active docket.

It is so ORDERED.

The Court directs the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record and to enter a

separate judgment order.

DATED: July 17, 2018.

/s/ Irene M. Keeley

TRENE M. KEELEY

UNITED STATES DISTRICT JUDGE

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