Tran v. United States Department of the Treasury ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DINH TRAN,
Plaintiff,
v. Case No. 1:17-cv-02601 (TNM)
DEPARTMENT OF TREASURY,
Defendant.
MEMORANDUM OPINION
Plaintiff Dinh Tran, a former employee of the U.S. Department of the Treasury, alleges
that it disclosed her annual performance appraisal in violation of the Privacy Act, 5 U.S.C. § 552a. 1
The Treasury admits that it disclosed Ms. Tran’s performance appraisal, a protected record. But
the Treasury argues that the Privacy Act’s “routine use” exception, id. § 552a(b)(3), and “need-to-
know” exception, id. § 552a(b)(1), permit the disclosure. So the Treasury has moved for summary
judgment. The “routine use” exception does not apply, but the Treasury’s motion will be granted
because the “need-to-know” exception applies.
I.
Dinh Tran was an Attorney-Advisory in the Office of Professional Responsibility (“OPR”)
within the Internal Revenue Service (“IRS”). 2 She applied for a six-month detail with the
1
Ms. Tran originally sued Treasury Secretary Steven Mnuchin in his official capacity. Individuals, however, are not
proper parties under the Privacy Act. See Cloonan v. Holder, 768 F. Supp. 2d 154, 162 (D.D.C. 2011). Instead, the
Privacy Act permits suits against “agencies,” which it defines by reference to 5 U.S.C. § 552(f). Courts thus have
considered cabinet-level entities or their components to be proper defendants in Privacy Act litigation. See, e.g.,
Thompson v. Dep’t of State, 400 F. Supp. 2d 1 (D.D.C. 2005). So the Plaintiff consented to substituting the
Department of Treasury as the Defendant. See Consent Mot. to Substitute Party Def., ECF # 20.
2
Unless otherwise indicated, the Court has drawn the background facts from Ms. Tran’s Statement of Facts, ECF #
32 pp. 3–10. In considering a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party and draws all reasonable inferences in her favor, see Johnson v. Perez, 823 F.3d
701, 705 (D.C. Cir. 2016).
Washington, D.C., field office of Division Counsel, Small Business/Self-Employed (“SB/SE”).
SB/SE is within the Office of the Chief Counsel (“OCC”) for the IRS, and it provides legal advice
to various components within the Treasury.
There are two types of detail requests: office-initiated and employee-initiated. Office-
initiated details occur if an office determines that it needs to detail an employee into an office unit
to meet organizational needs. Def. SUMF, ECF # 30-1 ¶ 3. Employee-initiated details, however,
are based on an employee’s desire to work outside her usual office, not organizational needs. Id.Ms. Tran’s request was employee-initiated. Compl, ECF # 1 ¶ 7.
When considering an employee-initiated detail request from an IRS employee, SB/SE’s
practice is to evaluate the requesting employee’s knowledge, skills, and experience to determine
whether the detail would benefit SB/SE and the requesting employee. Def. SUMF, ECF # 30-1
¶ 6. SB/SE also confirms that the requesting employee has completed her probation period and
has a rating of “fully successful.” 3 Id. ¶¶ 4, 6–7. SB/SE therefore requests the employee’s resume
and most recent performance appraisal. Id. ¶ 6. 4 SB/SE then recommends whether to approve the
detail to the Office of Associate Chief Counsel (Finance and Management) (“F&M”), which has
final approval authority. See Meneely Dep., ECF # 32-13 p. 25: 2–19; Chief Counsel Directives
Manual 30.4.1.8.2(5). 5
3
This requirement is commensurate with Division Counsel SB/SE’s eligibility requirements for employees seeking
details from other offices within OCC. See Agreement Between National Treasury Employees Union and IRS OCC,
Meneely Aff., ECF # 30-3, Ex. A; Def. SUMF, ECF # 30-1 ¶ 4–6.
4
Performance appraisals rate employees across five “Critical Job Elements:” Employee Satisfaction-Employee
Contribution, Customer Satisfaction-Knowledge, Customer Satisfaction-Application, Business Results-Quality, and
Business Results-Efficiency. For each Critical Job Element, the performance appraisal rates the as “Outstanding,”
“Exceeds Fully Successful,” “Fully Successful,” “Minimally Successful,” or “Unacceptable.” It then aggregates the
scores to give an overall rating. See Tran Performance Evaluation, ECF # 32-6.
5
The Treasury cites the Chief Counsel Directive Manual in its statement of undisputed material facts, see ECF # 30-
1 ¶5, and it is available at https://www.irs.gov/irm/part30/irm_30-004-001#idm140128588005504. “Courts in this
jurisdiction have frequently taken judicial notice of information posted on official public websites of government
agencies.” Pharm. Research & Mfrs. of Am. v. U.S. Dep’t of Health and Human Servs., 42 F. Supp. 3d 28, 33
(D.D.C. 2014) (collecting cases).
2
Debra Moe, then Division Counsel for SB/SE, emailed Patricia Manasevit in F&M, stating
that Ms. Tran was interested in a detail to SB/SE’s D.C. field office. Ms. Moe included Bruce
Meneely on the email. At the time, Mr. Meneely was Ms. Moe’s deputy. In that role, Mr. Meneely
oversaw the field operations for SB/SE, including the nine Area Counsel offices. See Def. SUMF,
ECF # 30-1 ¶12. Ms. Moe asked that Ms. Tran’s supervisor contact Mr. Meneely, and she stated
that SB/SE would be seeking information about Ms. Tran’s qualifications and performance history.
Meneely Aff., ECF # 30-3, Ex. B.
Ms. Manasevit forwarded a copy of Ms. Tran’s resume to Mr. Meneely. Def. SUMF, ECF
# 30-1, ¶ 14. Mr. Meneely then contacted Ms. Tran’s supervisor, OPR Director Stephen Whitlock,
to ensure that Mr. Whitlock was aware of and would approve Ms. Tran’s detail request. Id. ¶ 15.
Mr. Whitlock supported the detail, and Mr. Meneely requested a copy of Ms. Tran’s most recent
performance appraisal, which Mr. Whitlock provided. Id. ¶¶ 15–16. Mr. Meneely provided copies
of Ms. Tran’s performance appraisal and resume to Area Counsel Nancy Romano and Deputy
Area Counsel Thomas Rath, who were responsible for management oversight for SB/SE’s D.C.
field office. Id. ¶ 17. He asked them to evaluate Ms. Tran’s qualifications and recommend whether
to approve her detail request. Id.Ms. Romano spoke with Mr. Meneely about processing Ms. Tran’s detail request,
including whether front-line managers could be involved and whether the Division Counsel’s
office had any preference about the detail request. Meneely Dep., ECF # 32-13 pp. 37: 16–38: 18.
Mr. Meneely told Ms. Romano that she could engage the front-line managers in the D.C. field
office and they could interview Ms. Tran if they chose. Id at p. 38: 10–18. He also told her that
the Division Counsel’s office had no preconceived view on the detail request. Id.3
The Area Counsel’s office then emailed Ms. Tran’s information to three front-line
managers who were SB/SE Associate Area Counsels for the D.C. field office. They interviewed
Ms. Tran and ultimately recommended against approving her request. Def. SUMF, ECF # 30-1
¶ 20. They did not believe that she had the requisite litigation skillset to work in the D.C. field
office. Id. And they were concerned about Ms. Tran’s difficult relationship with her OPR
manager. Id.Mr. Meneely reviewed the recommendation and then forwarded a copy of Ms. Tran’s
information to Ms. Moe. Meneely Dep., ECF #32-13 p. 49: 3–18. He informed her that the front-
line managers recommended against approving Ms. Tran’s detail request and asked to speak with
her about Division Counsel’s ultimate recommendation. Id. Ms. Moe then asked Mr. Meneely to
tell F&M that SB/SE recommended against approving Ms. Tran’s detail request. Mr. Meneely did
so and learned that Ms. Tran had accepted a detail with another division. Meneely Dep., ECF #
32-13, p. 37: 7–19.
Ms. Tran sued, alleging that disclosure of her performance appraisal violated the Privacy
Act, 5 U.S.C. § 552a. The Treasury concedes that the Privacy Act protects employees’
performance appraisals, the Treasury disclosed the record, and it did not get Ms. Tran’s consent
beforehand. But the Treasury argues that the disclosure was permissible under the Privacy Act’s
“routine use” exception, id. § 552a(b)(3), and its “need-to-know” exception, id. § 552a(b)(1).
The Treasury thus moves for summary judgment.
II.
Summary judgment is appropriate when the pleadings and the evidence establish 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(a). The party seeking summary judgment bears the initial
4
responsibility to “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party has made an adequate showing that a
fact is not in dispute, the burden shifts to the party opposing summary judgment to “set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
In determining whether there is a genuine dispute of material fact, a court must “assume
the truth of all statements proffered by the party opposing summary judgment” and construe all
evidence in favor of the non-moving party. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999). A non-movant, however, must establish more than the “mere existence of a scintilla of
evidence” in support of its position. Anderson, 477 U.S. at 252. “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” id. at 249–50.
And unsupported, conclusory assertions offered with no evidentiary support do not establish a
genuine issue for trial. See Greene, 164 F.3d at 675. Summary judgment is appropriate if the
non-movant fails to offer “evidence on which the jury could reasonably find for [her.]”
Anderson, 477 U.S. at 252.
III.
The Privacy Act provides that “[n]o agency shall disclose any record which is contained
in a system of records by any means of communication to any person, or to another agency.”
5 U.S.C. § 552a(b). 6 But the Privacy Act permits such disclosures in two circumstances.
Disclosure is proper “pursuant to a written request by, or with the prior written consent of, the
individual to whom the record pertains.” Id. The parties agree that Ms. Tran did not consent to
6
Whenever an agency discloses an individual’s information contrary to § 552a(b), the individual may bring an
action in a federal district court. Id. § 552a(g)(1)(D). Thus, the Court has jurisdiction. See 28 U.S.C. § 1331.
5
the Treasury disclosing her performance appraisal. But disclosure is also proper where any of
twelve enumerated exceptions applies, § 552a(b)(1)–(12). According to the Treasury, two
enumerated exceptions apply here: the “routine use” exception, § 552a(b)(3), and the “need-to-
know” exception, § 552a(b)(1).
A.
Section 552a(b)(3) allows agencies to disclose otherwise protected records “for a routine
use as defined in subsection (a)(7).” A “routine use,” for the disclosure of a record, is the use of
a record “for a purpose which is compatible with the purpose for which it was collected.”
5 U.S.C. § 552a(a)(7). Agencies must publish in the Federal Register “each routine use of the
records contained in the system, including the categories of users and the purpose of such use.”
Id. § 552a(e)(4)(D). These regulations are known as Systems of Records Notice (SORNs).
The Treasury maintains that SORN 36.003, General Personnel and Payroll Records,
covers the disclosure here. See 80 Fed. Reg. 54101 (Sept. 8, 2015). This SORN applies to
current and former employees of the Treasury and covers records, like Ms. Tran’s performance
appraisal, in the employee’s Employee Performance File. The Treasury first points to SORN
36.003(3), which allows it to
[d]isclose information to a Federal, state, local, or tribal agency, or
other public authority, which has requested information relevant or
necessary to hiring or retaining an employee, or issuing or
continuing a contract, security clearance, license, grant, or other
benefit.
Next, the Treasury points to SORN 36.003(9), which allows it to “[d]isclose information to a
prospective employer of an IRS employee or former IRS employee.”
According to the Treasury, it was a “prospective employer” of Ms. Tran and her detail
request was a hiring action. Thus, it argues that either SORN 36.003(3) or 36.003(9) covers the
6
disclosure of Ms. Tran’s performance appraisal. But the Treasury has not shown that it was a
“prospective employer” or that Ms. Tran’s detail was a “hiring” action.
The problem with the Treasury’s theory is that when Ms. Tran requested a detail, the
Treasury was already her employer. As discussed, Ms. Tran was an attorney with OPR, a
Treasury component. The Treasury has not shown how it may qualify simultaneously as a
current employer and a “prospective employer” under SORN 36.003(9), and it has cited no
caselaw to support its position. Just as a hungry child may not have his cake and eat it too, so an
agency may not employ someone and also be her prospective employer.
Nor has the Treasury showed that a detail is a hiring action under SORN 36.003(3). As
Ms. Tran points out, federal statutes and regulations that authorize executive agencies to hire
non-employees are distinct from those that authorize agencies to detail current employees to
different offices within the agency. Compare, e.g., 5 U.S.C. §§ 3301 et seq. (appointments) with
5 U.S.C. §§ 3341 et seq. (details); see also 5 U.S.C. §§ 9510(a), (c). When an agency details an
employee, it has already hired her; the employee is merely being assigned temporarily to a
different position within the employing organization.
The Treasury complains that this reasoning relies on a too miserly a definition of
“hiring.” It cites Black’s Law Dictionary to define “hire”: “to engage the labor or services of
another for wages or other payment.” Black’s Law Dictionary (10 ed., 2014). The Treasury
argues that it was considering engaging Ms. Tran—for wages—in a position within the agency.
But it was already true that the Treasury was engaging Ms. Tran’s services for wages, and the
Treasury has not established that a detail qualifies as a new hiring action. Nor has it
meaningfully addressed Ms. Tran’s argument that details are distinct from hiring actions.
7
Next, the Treasury argues that the “routine use” exception applies because SORN
36.003(3) permits the agency to disclose “information to a Federal . . . public authority, which
has requested information relevant or necessary to . . . issuing or continuing a . . . benefit.” But
when an agency publishes the routine uses for a record, it must include “the purposes of such
use,” 5 U.S.C. § 552a(3)(4)(D), and the broad term “benefit” does not provide adequate notice of
the purposes for which the Treasury may release an employee’s information. Cf. Britt v. Naval
Invest. Serv., 886 F.2d 544, 547–48 (3d Cir. 1989). 7 The Treasury has pointed to no authority
for its argument that a work detail qualifies as a “benefit” under SORN 36.003(3), and reliance
on such overboard terms to argue that a disclosure is permitted after the fact frustrates
§ 552a(3)(4)(D)’s publication requirement.
This is especially true given the Treasury’s proposed far-reaching definition of “benefit”
under SORN 36.003(3). The Treasury claims that because employee-initiated detail requests
give employees the opportunity to gain knowledge and experience outside their normal work
section, “such a detail is a ‘benefit[.]’” Def. Reply in Supp. of Mot. for Summ. J., ECF # 33 pp.
5–6. Essentially, the Treasury argues that anything that is desirable, beneficial, or helpful is a
“benefit” under SORN 36.003(3). But such an open definition cannot satisfy § 552a(3)(4)(D)’s
requirement that agencies notify individuals of the purposes for which their information may be
used. What is more, the terms that immediately precede “benefit” in SORN 36.003(3)—
“contract, security clearance, license, grant”—show that “benefit” denotes a narrower and more
technical meaning. And the scope of routine uses is confined by the published definitions. See
7
In Britt, the court noted that purpose of the publication requirement was to provide “meaningful public notice,” and
“[i]t was Congress’ intent that the routine use exception should serve as a caution to agencies to think in advance
what uses [they] will make of the information.” 886 F.2d at 548 (cleaned up); see also Radack v. Dep’t of Justice,
402 F. Supp. 2d 99, 105 (D.D.C. 2005) (“In order to ensure that people are aware of the purpose for which their
information might be disclosed, agencies are required to publish each routine use in the Federal Register.”).
8
Doe v. Naval Air Station, Pensacola, Fla., 768 F.2d 1229, 1231–32 (11th Cir. 1985). The
Treasury, however, has not shown that a work detail fits within this narrower universe of benefits
contemplated under SORN 36.003(3). Thus, neither SORN 36.003(3) nor 36.003(9) covers the
disclosure of Ms. Tran’s performance appraisal, and the “routine use” exception does not apply.
B.
The Treasury’s next argument is on the money. Section 552a(b)(1) is known as the intra-
agency “need-to-know” exception. See, e.g., Sussman v. U.S. Marshals Serv., 808 F. Supp. 2d
192, 200–02 (D.D.C. 2011). It permits agencies to disclose otherwise protected records “to
officers and employees of the agency which maintains the record who have a need for the record
in the performance of their duties.” 5 U.S.C. § 552a(b)(1). The Treasury correctly contends that
this section permits the disclosure of Ms. Tran’s performance appraisal.
First, the disclosure here was “intra-agency,” because both OPR and SB/SE are Treasury
components. Ms. Tran does not argue otherwise. And other courts that have considered Privacy
Act claims involving disclosures between separate offices within a department have evaluated
claims from the Executive Department-level perspective.
Sussman considered whether the Marshals Service violated the Privacy Act by disclosing
information to the FBI that implicated the plaintiff in various financial crimes. 808 F. Supp. 2d
at 197. Both the Marshals Service and the FBI are components of the Department of Justice.
The court dismissed Mr. Sussman’s argument that because the Marshals Service was the agency
that maintained the record its disclosure to the FBI could not fall under the intra-agency
exception. Id. at 200–02. The court explained that from the department-level perspective, “DOJ,
insofar as it maintains the USMS records at issue, does not disclose those records to the FBI as a
separate agency that does not maintain such records; instead, DOJ discloses those records to
9
itself, insofar as it maintains FBI records as well.” Id. at 201 (emphasis in original); see also
Thompson, 400 F. Supp. 2d 1 (evaluating disclosures among offices within the Department of
State). So too here. While OPR and SB/SE are separate offices within the Treasury, from the
department-level perspective the Treasury maintains the records of both offices and the
disclosure was intra-agency.
Second, the Treasury employees who examined Ms. Tran’s performance appraisal had a
“need-to-know” the information. “What matters . . . is the ‘need-to-know’ of the agency official
who received the disclosure . . . .” Cacho v. Chertoff, 2006 WL 3422548, at *4 (D.D.C. Nov. 28,
2006) (emphasis in original). And “[s]ection 552a(b)(1) does not require an agency to list those
of its officers eligible to look at protected records, nor does it demand that an agency official be
specifically assigned to examining records.” Bigelow v. Dep’t of Defense, 217 F.3d 875, 877
(D.C. Cir. 2000). Instead, the Court should determine “whether the official examined the record
in connection with the performance of duties assigned to him and whether he had to do so to
perform those duties properly.” Id. In other words, did the examining official have a legitimate
purpose for the review, or was he improperly accessing an employee’s private records?
Here, the disclosure of Ms. Tran’s performance appraisal to Ms. Romano, Mr. Rath, and
the front-line managers in the D.C. field office falls comfortably within § 552a(b)(1). Remember
that Ms. Tran began this disclosure—although perhaps unwittingly—by applying for a detail in
this office. Mr. Meneely then tasked the Area Counsel and front-line managers with evaluating
Ms. Tran’s detail request and recommending whether to approve it. As he explained, “[t]hey’re
the people that have to train and manage any potential detailee.” Meneely Dep., ECF # 32-13 p.
52: 18–20. The only time that these individuals examined Ms. Tran’s performance appraisal was
in performing their assigned duty.
10
And they had a need-to-know the information in Ms. Tran’s performance appraisal to
perform their assigned duty properly. Agencies often invoke the “need-to-know” exception
when they release records for a disciplinary investigation. See, e.g., Bigelow, 217 F.3d at 877.
But it equally applies to a detail decision. Both are decisions about whether an employee is fit
for a position within the agency or can perform certain duties. Both are triggered by the
employee’s actions, not supervisory caprice.
In evaluating whether a potential detailee has the requisite experience to benefit SB/SE, it
would be necessary to know certain information from the performance appraisal. For example,
the performance appraisal rates employees on legal skills, e.g., “Written Work,” “Oral
Communication,” and “Legal Interpretation.” See Tran Performance Appraisal, ECF # 32-6.
Because SB/SE’s role is to provide legal advice and guidance on tax litigation, that information
would be necessary to evaluating whether the office would benefit from the potential detailee.
The Privacy Act certainly does not require agencies to make uninformed personnel
decisions. Indeed, courts have recognized that “[t]he ‘need-to-know’ exception permits the
disclosure of a person’s protected record to a supervisor who needs the information contained in
the record to assess the person’s trustworthiness and make related personnel decision.” Cacho,
2006 WL 3422548, at *6; see also Doe v. Dep’t of Justice, 660 F. Supp. 2d 31, 45 (D.D.C.
2009); Bigelow, 217 F.3d at 877. And the front-line managers recommended against approving
Ms. Tran’s detail request in part because “they did not believe that Ms. Tran had the litigation
skillset needed to be a docket attorney in the D.C. field office.” Meneely Dep., ECF # 32-13 p.
42: 16–19.
But Ms. Tran complains that Mr. Meneely, who supervises the Area Counsel and front-
line managers just discussed, did not need to view her performance appraisal to perform his
11
duties. Not so. Of course, “the need to know exception is not limited only to officers and
employees within a certain office within an agency rather than to officers and employees of the
entire agency.” Doe, 660 F. Supp. 2d at 46 (cleaned up). In Hanna v. Herman, the court found
that an agency supervisor’s disclosure of information about the plaintiff’s demotion to a
supervisor elsewhere in the agency “would be covered by the ‘need to know’ exception as a
matter of law.” 121 F. Supp. 2d 113, 123–24 (D.D.C. 2000).
As Deputy Division Counsel responsible for SB/SE’s field operations, including for the
D.C. field office, Mr. Meneely was among the highest-ranking officials in SB/SE Division
Counsel’s office. Courts have recognized that the “need-to-know” exception “encompasses
personnel matters,” see Viotti v. U.S. Air Force, 902 F. Supp. 1331, 1337 (D. Colo. 1995), and
Mr. Meneely would have needed to know the information disclosed about Ms. Tran because of
his supervisory role in determining her suitability for a detail in his office. Cf. Doe, 660 F. Supp.
2d at 46 (“As the ‘highest-ranking officers’ in the office, with ‘supervisory and disciplinary
authority over the plaintiff,’ the Criminal Chief and the Acting U.S. Attorney had a need to know
the information disclosed about he plaintiff.).
Moreover, Mr. Meneely examined Ms. Tran’s performance appraisal only in the
performance of duties assigned to him and he needed to know this information to perform those
duties properly. Ms. Moe tasked Mr. Meneely with shepherding Ms. Tran’s detail request
through the process, reviewing the recommendation of the front-line managers, and making the
final recommendation about her request. Mr. Meneely testified that when SB/SE received a
detail request, Ms. Moe would route it “to one of the deputy division counsel, either [Mr.
Meneely] or Joe Spires . . . , and [Ms.] Moe in 2016 would have tasked one of them with
shepherding [the request] through the process.” Meneely Dep. at p. 17: 4–10. Ms. Moe included
12
Mr. Meneely on her initial email about Ms. Tran’s detail request to Ms. Manasevit. And she
asked that Mr. Meneely speak with Ms. Tran’s supervisor and stated that SB/SE would be
seeking information about Ms. Tran’s qualifications and performance history. More, Ms. Moe
tasked Mr. Meneely with making the final recommendation for or against the detail to F&M, id.at pp. 24: 1–25: 1, which he did in consultation with her, see id. at pp. 24: 19–25:1, 25: 12–19,
49: 3–18. To perform these duties properly, Mr. Meneely appropriately examined Ms. Tran’s
performance appraisal.
Ms. Tran argues that Mr. Meneely relied heavily on front-line supervisors for a
recommendation on her detail and that his concern was only that the detailee was licensed to
practice before the U.S. Tax Court. She also notes that Mr. Meneely discussed the front-line
manager’s recommendation with Ms. Moe before relaying SB/SE’s recommendation to F&M.
She suggests that he was just a go-between who had no substantive role in the decision, making
his peering into her records extraneous.
But just because Mr. Meneely delegated fact-finding tasks to front-line supervisors does
not vitiate his responsibility to review their recommendation and make a final recommendation
regarding the detail. Reviewing their recommendation properly involved reviewing the
information on which they based their recommendation, including Mr. Tran’s performance
appraisal. And while Mr. Meneely may have deferred to his front-line managers about the
specific skillsets that the detailee would need, he still would need confirm that Ms. Tran had at
least a fully satisfactory rating on her performance appraisal under SB/SE’s policy. See id. at 21:
4–18.
13
Finally, while Mr. Meneely discussed the front-line supervisors’ recommendation with
Ms. Moe before making a final decision, that does not create a genuine dispute about his duties. 8
Again, Mr. Meneely directly reported to Ms. Moe, and as Division Counsel, she had authority to
recommend granting or denying the detail request. So even though she had referred Ms. Tran’s
request to Mr. Meneely, it would be reasonable for him to confer with her about the final
recommendation.
Mr. Meneely testified that because Ms. Moe had initially assigned him Ms. Tran’s detail
request, he felt it necessary to “keep her in the loop.” Meneely Dep., ECF # 32-13 p. 24: 16–25:
1. The record shows that he did review the front-line supervisors’ recommendation and
discussed it with Ms. Moe, Id. at 24: 21–25: 1, 49: 3–18, before informing F&M that SB/SE
recommended against approving Ms. Tran’s request, id. at p. 25: 12–19. None of this
undermines Mr. Meneely’s testimony that Ms. Moe had delegated to him responsibility for Ms.
Tran’s detail request. Ms. Tran has failed to establish that there is a genuine issue of fact about
Mr. Meneely’s duties for her detail request or that in performing those duties he needed to know
the information in her performance appraisal.
IV.
For all these reasons, the Defendant’s Motion for Summary Judgment is granted. A
separate order will issue.
2019.01.15
15:30:35 -05'00'
Dated: January 15, 2019 TREVOR N. McFADDEN, U.S.D.J.
8
Ms. Tran does not challenge the disclosure of the information in her performance appraisal to Ms. Moe. See Pl.
Compl., ECF # 1 ¶¶ 21–25.
14