                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
MARILYN TOLBERT-SMITH,        )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 06-1216 (RWR)
                              )
STEVEN CHU,                   )
                              )
     Defendant.               )
______________________________)


                  MEMORANDUM OPINION AND ORDER

     Plaintiff, Marilyn Tolbert-Smith, an employee in the Legacy

Management branch (“LM”) of the United States Department of

Energy, brings claims under the Rehabilitation Act, Title VII of

the Civil Rights Act of 1964, and the Privacy Act against the

Secretary of the Department of Energy,1 alleging discrimination,

hostile work environment, and improper disclosure of information

regarding her medical condition.   The Secretary has filed a

motion for partial judgment on the pleadings or, in the

alternative, for summary judgment, arguing that Tolbert-Smith’s

claims are time-barred, and that there is no genuine issue of

material fact with respect to plaintiff’s Privacy Act claims.

Because Tolbert-Smith timely filed her Equal Employment

Opportunity Commission (“EEOC”) complaint and her district court



     1
       Steven Chu is substituted for Samuel Bodman under Federal
Rule of Civil Procedure 25(d).
                                - 2 -

complaint, the Secretary’s motion, treated as a motion for

summary judgment, will be denied with respect to the timeliness

issue.   Further, because Tolbert-Smith has stated a claim for

relief but has not had a reasonable opportunity to contest

matters outside the pleadings on her Privacy Act claim, the

Secretary’s motion with respect to that issue will be denied

without prejudice to the parties filing supplemental memoranda

that address the Privacy Act claim.

                              BACKGROUND

     Tolbert-Smith has been employed by the Department of Energy

since 1991 and as a program analyst in LM since that branch’s

inception in December 2003.    (Second Am. Compl. ¶ 23.2)    Terrance

Brennan, a team leader in LM, originally supervised Tolbert-

Smith.   (Id. ¶ 25.)   Throughout Tolbert-Smith’s employment with

LM, she has suffered from clinical depression.    (Id. ¶¶ 31-36.)

Tolbert-Smith alleges that in November 2004, Brennan contacted

her treating physician without her consent to request information

about her illness and medical treatment.    (Id. ¶ 46.)     Tolbert-

Smith also alleges that members of LM management made disparaging


     2
       Tolbert-Smith twice amended her complaint after the
Secretary filed his motion for partial judgment on the pleadings.
Because the Secretary incorporated by reference his motion for
partial judgment on the pleadings in a motion for summary
judgment that he filed after Tolbert-Smith amended her complaint
(Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J. at
3), the motion for partial judgment on the pleadings will be
deemed directed to the second amended complaint.
                                  - 3 -

remarks about her illness.   (Id. ¶ 47.)     On August 31, 2005,

Tolbert-Smith contacted the Department’s Office of Civil Rights

(“OCR”), alleging discrimination and requesting counseling.        (Id.

¶¶ 9, 61.)   Tolbert-Smith participated in the requisite EEO

counseling process, retained counsel, and notified OCR and the

agency that she had obtained representation.     (Id. ¶¶ 68, 97.)

Several months after Tolbert-Smith sought counseling, members of

LM management placed confidential information regarding her

illness on a server accessible by all federal employees and

outside contractors.   (Id. ¶¶ 72-75.)

     On January 25, 2006, Tolbert-Smith received a “Notice of

Final Interview with EEO Counselor and Right to File a Formal

Complaint” from OCR.   (Pl.’s Mem. of P. & A. in Opp’n to Def.’s

Mot. for Partial J. (“Pl.’s Mem.”), Ex. 2, Polydor Decl. ¶ 6.3)

Following receipt, Tolbert-Smith contacted her attorney, Cheryl

Polydor, and informed her of the Notice.     (Id.)   Polydor received

a copy of that notice from the Department in the mail on

February 22, 2006.   (Id. ¶ 7.)    The notice stated that 29 C.F.R.

§ 1614.105(d) required Tolbert-Smith to file any formal complaint

within fifteen days of receipt of the notice.     (Pl.’s Stmt. of

Genuine Issues (“Pl.’s Stmt.”) ¶ 3.)      Tolbert-Smith alleges that

she filed a formal administrative complaint on February 9, 2006.



     3
       The plaintiff’s exhibit erroneously states certain
relevant dates in 2006 as having been in 2007.
                                  - 4 -

(Pl.’s Mem., Ex. 2, Polydor Decl. ¶ 8.)      She claims that, on that

day, Polydor addressed an envelope containing the notice by

gluing an address label onto the front of the envelope and placed

it in the mail.   (Id. ¶¶ 8-9.)    Eight days later, the envelope

was returned to Polydor for failure to attach an address, as the

glued-on label had become detached.       (Id. ¶¶ 10-11.)   Upon return

of the envelope, Polydor procured a new envelope, on which she

typed the intended address.   She mailed the envelope on

February 17, 2006, the date OCR credited as the filing date.

(Id. ¶ 12.)   On March 30, 2006, Polydor received an email

informing her that OCR had determined that the administrative

complaint was untimely and would be dismissed as a result.       (Id.

¶ 13.)   Tolbert-Smith received an official notice of dismissal on

April 3, 2006.    (Second Am. Compl. ¶ 19.)

     Polydor asserts that she traveled to this courthouse on the

night of July 3, 2006 to place Tolbert-Smith’s district court

complaint in the drop box for after-hours filing.      (Pl.’s Mem.,

Ex. 2, Polydor Decl. ¶ 19.)   When she arrived, she noticed that

the three time-clocks for stamping filings –– one for the U.S.

District Court, one for the U.S. Bankruptcy Court, and one for

the U.S. Court of Appeals –– displayed different times and dates.

(Id. ¶ 24.)   The bankruptcy and circuit clocks displayed dates of

“June 34" and “July 33,” respectively (id. ¶ 25), and the

machines stamped these dates on an extra copy of Tolbert-Smith’s
                                - 5 -

complaint.    (Id., Ex. 2, Polydor Decl. ¶ 27; Ex. 5 at 1.)   The

bankruptcy stamp also reflects a time of “P 11:59.”     (Id., Ex. 5

at 1.)   Polydor did not stamp the copy of the complaint with the

district court machine.   (See id.)     The Court was closed the next

day for the July 4th holiday, and the Clerk docketed the

complaint on July 5, 2006.    (Pl.’s Mem., Ex. 2, Polydor Decl.

¶¶ 28, 29.)    Two of the three summonses that the Clerk’s Office

issued reflected a July 5, 2006 filing date, but the summons to

the Attorney General contained two different date stamps –– one

for July 3, 2006, and one for July 5, 2006.     (Id., Ex. 2, Polydor

Decl. ¶ 31; Ex. 6.)

     The Secretary has moved for partial judgment on the

pleadings or, in the alternative, summary judgment, arguing that

Tolbert-Smith failed to exhaust her administrative remedies

because she did not timely file her EEOC complaint or her

district court complaint, and that she has failed to demonstrate

that the Secretary willfully or intentionally disclosed any

documents from its records.    Tolbert-Smith opposes, arguing that

both her EEOC and district court complaints were timely filed,

and that she has established willful and intentional violations

of the Privacy Act.

                              DISCUSSION

     A party may move for judgment on the pleadings “[a]fter the

pleadings are closed –– but early enough not to delay trial[.]”
                                - 6 -

Fed. R. Civ. P. 12(c).   Such a motion is granted if there are no

material facts in dispute and the movant is entitled to judgment

as a matter of law.   Stewart v. Evans, 275 F.3d 1126, 1132 (D.C.

Cir. 2002).   “In considering a motion for judgment on the

pleadings, the Court should ‘accept as true the allegations in

the opponent’s pleadings’ and ‘accord the benefit of all

reasonable inferences to the non-moving party.’”   Id. (quoting

Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir.

1987)).

     When “matters outside the pleadings are presented to and not

excluded by the court” on a Rule 12(c) motion, “the motion must

be treated as one for summary judgment under Rule 56.”    Fed. R.

Civ. P. 12(d).   A motion may be treated as one for summary

judgment even if the parties have not been provided with notice

or an opportunity for discovery if they have had a reasonable

opportunity to contest the matters outside the pleadings such

that they are not taken by surprise.    See Highland Renovation

Corp. v. Hanover Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C.

2009).    Summary judgment may be granted when the moving party

demonstrates that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law.   Fed. R. Civ. P. 56(c).   In considering a motion

for summary judgment, a court is to draw all justifiable

inferences from the evidence in favor of the nonmovant.    Cruz-
                                - 7 -

Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C.

2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)).    The relevant inquiry “is the threshold inquiry of

determining whether there is the need for a trial –– whether, in

other words, there are any genuine factual issues that properly

can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.”   Liberty Lobby,

477 U.S. at 250.   A genuine issue exists where the “evidence is

such that a reasonable jury could return a verdict for the non-

moving party[,]” as opposed to where the evidence is “so one-

sided that one party must prevail as a matter of law.”   Id. at

248, 252.

I.   EXHAUSTION

     Tolbert-Smith has submitted a statement of material facts

under Local Civil Rule 7(h) that addresses the Secretary’s

exhaustion arguments.   Thus, the motion for partial judgment on

the pleadings will be treated as a motion for summary judgment

with respect to this issue.   See Langley v. Napolitano, 677 F.

Supp. 2d 261, 263 (D.D.C. 2010) (construing motion for judgment

on pleadings as motion for summary judgment when both parties

submitted statements of material facts because plaintiff “had a

reasonable opportunity to respond to the attached materials”).
                               - 8 -

     A.   EEOC Complaint

     The Rehabilitation Act requires administrative exhaustion

because it “limits judicial review to employees ‘aggrieved by the

final disposition’ of their administrative ‘complaint[.]’”

Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006).    A

plaintiff who believes she has been discriminated against based

upon a disability “must consult a Counselor prior to filing a

complaint in order to try to informally resolve the matter.”    29

C.F.R. § 1614.105(a).   If the claim is not resolved within thirty

days of the aggrieved party contacting the office to request

counseling, the office must notify the party “of the right to

file a discrimination complaint” with the agency “within 15 days

of receipt of the notice.”   29 C.F.R. § 1614.105(d).   An agency

“shall dismiss an entire complaint” that was not filed within

“the applicable time limits[.]”   29 C.F.R. § 1614.107(a)(2).

     After consulting with a counselor, Tolbert-Smith received on

January 25, 2006 a notice of her right to file a complaint with

the agency.   The Secretary argues that Tolbert-Smith’s fifteen-

day deadline for filing a formal complaint was February 9, 2006,

citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93

(1990), for the proposition that the time to file a complaint

begins to run from the date that notice is delivered either to

the complainant or to her attorney.    (Def.’s Mem. of P. & A. in

Supp. of Def.’s Mot. for Partial J. on the Pleadings or, in the
                                - 9 -

Alternative, for Summ. J. (“Def.’s Mem.”) at 6.)    For the purpose

of timely filing a civil complaint in federal court, “notice of a

final action is considered received by a claimant when the notice

reaches either a claimant or the claimant’s attorney, whichever

comes first.”   McKay v. England, Civil Action No. 01-2535 (JR),

2003 WL 1799247, at *1 (D.D.C. Mar. 27, 2003).   However, for the

purpose of administrative proceedings before the EEOC, when a

complainant is represented by counsel, the “time frames for

receipt of materials shall be computed from the time of receipt

by the attorney.”   29 C.F.R. § 1614.605(d); see also Harris v.

Bodman, 538 F. Supp. 2d 78, 81 (D.D.C. 2008) (noting that 29

C.F.R. § 1614.605(d) “applies to administrative proceedings

before the EEOC; it does not purport to apply to the limitations

period for filing suit in federal court” (quoting McKay, 2003 WL

1799247 at *2)).    Therefore, Tolbert-Smith’s administrative

complaint was not due until March 9, 2006, fifteen days after

Polydor’s receipt of the notice.

     A complaint is considered filed on the date it is

postmarked.   29 C.F.R. § 1614.604(b).   OCR noted February 17,

2006, the date Polydor re-mailed the complaint after it was

returned as undeliverable, as the date of filing.   (Def.’s Mem.

at 6.)   Because this date fell within fifteen days of Polydor’s

receipt of the notice, OCR incorrectly rejected Tolbert-Smith’s

complaint as untimely.   Therefore, Tolbert-Smith did not fail to
                               - 10 -

exhaust her EEOC administrative remedies before filing suit in

this court.

     B.   Civil Action

     After an administrative complaint is dismissed, the

complainant may then either appeal the dismissal to the EEOC

within thirty days, 29 C.F.R. § 1614.402(a), or file a civil

action within ninety days of receipt of the final agency action.

29 C.F.R. § 1614.407.    Tolbert-Smith received notice of final

agency action on April 3, 2006 (Second Am. Compl. ¶ 19), and

there is no dispute that her deadline to file a complaint in

district court was July 3, 2006.4   (See Pl.’s Mem. at 8; Def.’s

Mem. at 8.)   While “[c]ourts apply the ninety-day time limit

strictly and will dismiss a suit for missing the deadline by even

one day[,]” Wiley v. Johnson, 436 F. Supp. 2d 91, 96 (D.D.C.

2006), courts have also hesitated to grant a defendant’s summary

judgment motion on the ground that a complaint was not timely

filed when the date of filing is in dispute.   See, e.g., Nasr v.

De Leon, 18 Fed. Appx. 601, 605 (9th Cir. 2001) (concluding that

summary judgment for defendant on statute of limitations grounds

was inappropriate because documents in the record “prevent[ed] a

definitive finding” of the claim’s accrual date); Arakaki v.

United States, 62 Fed. Cl. 244, 259 (Fed. Cl. 2004) (denying


     4
       The ninetieth day, July 2, 2006, fell on a Sunday, so the
date for timely filing was July 3, 2006. See Fed. R. Civ. P.
6(a)(1)(C).
                              - 11 -

defendant’s motion to dismiss, treated as a motion for summary

judgment, on statute of limitations grounds because the question

of when plaintiff’s claim for breach of contract accrued depended

on sale date, a factually contested issue).

     Here, there is a factual dispute as to the date of filing.

Tolbert-Smith claims that she filed her complaint on July 3,

while the Secretary claims that Tolbert-Smith filed her complaint

on July 5.   (See Pl.’s Mem. at 8; Def.’s Mem. at 8.)   Tolbert-

Smith cites Polydor’s affidavit, in which she states that she

arrived at the courthouse “several minutes before midnight on

July 3, 2006.”   (Pl.’s Mem., Ex. 2, Polydor Decl. ¶ 19.)   Polydor

further states that the clocks displayed the incorrect dates of

July 33, 2006 and June 34, 2006, and that in her confusion she

could “not recall precisely which clocks [she] used to stamp the

Complaint[.]   (Id. ¶¶ 25, 26.)   Tolbert-Smith also cites a copy

of her complaint, which largely corroborates Polydor’s account,

as the complaint contains a bankruptcy time stamp dated July 33,

2006 at “P 11:59” and a circuit time stamp dated June 34 2006,

although at 12:03 AM.   (Id., Ex. 5 at 1.)    That the Clerk’s

Office stamped the summons to the Attorney General with

conflicting July 3, 2006 and July 5, 2006 date stamps provides

some additional support for Polydor’s account.    Even though the

complaint does not contain a district court time stamp, the

Secretary has not provided any other affirmative evidence that
                                - 12 -

suggests that Tolbert-Smith did not file her complaint on July 3,

2006.    Drawing all inferences in favor of the nonmovant, a

reasonable jury could easily find that Tolbert-Smith timely filed

her complaint.

II.     PRIVACY ACT

        The Privacy Act, 5 U.S.C. § 552a, sets forth standards for

maintaining and restrictions upon disclosing certain personnel

records.    Among the records covered by the Act are “item[s],

collection[s], or grouping[s] of information about an

individual[’s] . . . medical history . . . or employment

history[.]”    5 U.S.C. § 552a(a)(4).    An individual may bring a

civil action against an agency if the agency “fails to comply

with [the disclosure restrictions] . . . in such a way as to have

an adverse effect on [that] individual[,]” 5 U.S.C.

§ 552a(g)(1)(D), and causes actual damages.     Thompson v. Dep’t of

State, 400 F. Supp. 2d 1, 7 (D.D.C. 2005).      A plaintiff may

recover damages from the United States if “the agency acted in a

manner which was intentional or willful.”     5 U.S.C. § 552a(g)(4).

No cause of action arises for damages if a disclosure was merely

inadvertent; rather, “the violation must be so ‘patently

egregious and unlawful’ that anyone undertaking the conduct

should have known it ‘unlawful.’”    Laningham v. U.S. Navy, 813

F.2d 1236, 1242 (D.C. Cir. 1987) (quoting Wisdom v. Dep’t of

Hous. & Urban Dev., 713 F.2d 422, 425 (8th Cir. 1983)); see also
                               - 13 -

Albright v. United States, 732 F.2d 181, 189 (D.C. Cir. 1984)

(noting that an agency acts intentionally or willfully “either by

committing the act without grounds for believing it to be lawful,

or by flagrantly disregarding others’ rights under the Act”).

     Tolbert-Smith has stated a claim for relief under the

Privacy Act.   She pled that a member of LM management placed

records referring and relating to her disability on a server

accessible by other federal employees and members of the public.

(Second Am. Compl. ¶¶ 115, 116.)   The information on the server

constituted a record under 5 U.S.C. § 552a(a)(1) because it

contained information about Tolbert-Smith’s medical and

employment circumstances.   Tolbert-Smith has pled that she has

suffered an adverse effect to her professional reputation, from

which she has suffered actual damages.   (Second Am. Compl.

¶ 118.)   Moreover, Tolbert-Smith alleged that the disclosure was

willful and intentional.    (Id. ¶¶ 116, 117.)   Specifically, she

claimed that the individual who placed her information on the

server did so to retaliate against her for filing an

administrative complaint (id. ¶ 78), which constitutes an

allegation that the disclosure was intentional or willful.    See

Toolaprashad v. Bureau of Prisons, 286 F.3d 576, 584 (D.C. Cir.

2002) (noting that punishing a plaintiff for filing an

administrative grievance satisfies the definition of a willful or
                             - 14 -

intentional Privacy Act violation).5   The Secretary’s answer

denied Tolbert-Smith’s Privacy Act allegations and placed in

dispute the material facts alleged, precluding judgment on the

pleadings on that claim.

     The Secretary’s motion for partial judgment on the pleadings

with respect to Tolbert-Smith’s Privacy Act claim will not be

converted to one for summary judgment on that claim.   The

Secretary cited exhibits in his motion for partial judgment on

the pleadings but did not attach any exhibits to that motion.6

(See Def.’s Mem., Docket #31.)   As a consequence, Tolbert-Smith

asserted that the Secretary did not support his arguments with

citations to the record (Pl.’s Stmt. ¶¶ 13-15), and she did not

cite the record in her statement of genuine issues.    Thus,

because of Tolbert-Smith’s confusion about the exhibits, Tolbert-

Smith has not had a reasonable opportunity to contest the matters

outside the pleadings with respect to the Privacy Act claim, and

converting the motion to one for summary judgment would be


     5
       Tolbert-Smith also argues that Brennan’s visit to her
treating physician and her managers’ comments about her illness
violated the Privacy Act. (Pl.’s Mem. at 12.) However, she has
not pled that these actions constitute a disclosure under the
Privacy Act. Therefore, they do not suffice collectively as an
independent Privacy Act violation, although they may serve as
evidence that the Secretary acted intentionally or willfully when
placing Tolbert-Smith’s information on the server.
     6
       It appears that the Secretary was citing exhibits attached
to his motion to dismiss, filed on October 26, 2006. (See Def.’s
Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, or in the
Alternative, for Summ. J., Docket #6.)
                                - 15 -

unfair.   Cf. Langley, 677 F. Supp. 2d at 263.   The Secretary’s

motion regarding this claim will be denied.

                         CONCLUSION AND ORDER

     Tolbert-Smith timely filed both her EEOC complaint and her

district court complaint, and she has stated a claim for relief

under the Privacy Act.    However, it would unfairly surprise

Tolbert-Smith to rely on matters outside the pleadings to

determine if there are any genuine issues of material fact with

respect to her Privacy Act claim.    Accordingly, it is hereby

     ORDERED that defendant’s motion [31] for partial judgment on

the pleadings or, in the alternative, for summary judgment be,

and hereby is, DENIED.    It is further

     ORDERED that defendant may renew and supplement his motion

for summary judgment with respect to the Privacy Act claim by

June 9, 2010, plaintiff may supplement her opposition on the

issue by June 23, 2010, and defendant may supplement his reply on

the issue by June 30, 2010.

     SIGNED this 26th day of May, 2010.


                                __________/s/_______________
                                RICHARD W. ROBERTS
                                United States District Judge
