The opinion of the court was delivered by: ZAGEL
Plaintiff Mitzi Baker has been employed as a letter carrier by the United States Postal Service ("Postal Service") since 1989. She is also a member of the National Association of Letter Carriers ("NALC" or the "Union"), a union that serves as the exclusive bargaining agent for letter carriers. The terms and conditions of Baker's employment are governed by a collective bargaining agreement ("CBA") between the NALC and the Postal Service.
Between 1990 and 1992, Baker worked at the Graceland-Annex postal facility where defendant Robert Bisbee served as Station Manager. In 1991 and 1992, Baker filed Equal Employment Opportunity ("EEO") complaints alleging claims of sexual harassment and retaliation by Bisbee and other employees. An administrative judge issued a Recommended Decision on June 14, 1994 (the "June Decision") finding that Baker had been subjected to a hostile environment and retaliation in violation of Title VII; the Postal Service accepted this conclusion in a Final Agency Decision issued on August 8, 1994. This latter decision prescribed remedial relief for Baker including the expungement of negative reports from her personnel files and the reassignment of Baker to the Postal Facility of her choice. Baker appealed this decision, and, eventually, these complaints were heard in federal district court where Magistrate Judge Bobrick granted summary judgment on April 18, 1996 against the Postal Service for sexual harassment and retaliation activities that violated Title VII. Baker v. Runyon, 922 F. Supp. 1300, (N.D. Ill. 1996), rev'd in part, 114 F.3d 668 (7th Cir. 1997) ("Baker I ").
From around March 6, 1993 to August 1995, the Postal Service assigned Baker to the Jackson Park facility where defendant Leslie Thomas served as Station Manager and defendant Ronald Brignac worked as a letter carrier. On or about May 6, 1994, Jackson Park supervisors instructed employees not to delay political mail. A bit later, rumors began to circulate at the Jackson Station that Baker had reported to upper management that she had seen some co-workers delaying political mail. As a result, numerous co-workers, including defendant Brignac, started calling Baker a "snitch" (and other derogatory names), threatening her with violence, and treating her in a generally nasty manner; supervisors, too, including defendant Thomas, treated her with hostility and assigned her to undesirable tasks, some of which allegedly contravened Baker's medical restrictions. In one particular incident on July 14, 1994, Brignac announced over the Jackson Station public address system that there was "a rat and a stool pigeon" in the waste department, where one day earlier supervisors assigned Baker to work alone. For the next several days, Postal Service employees harassed her loudly and frequently. Thereafter, Baker continued to experience periodic harassment including an incident where a postal employee threw mail at her and called her a "dog bitch". Baker complained to supervisors at Jackson Park on September 16, 1994 about this incident and reported it to an EEO counselor.
On or about November 2, 1994, Baker received a Letter of Warning (LOW) from supervisor Carol Coursey. Baker filed a union grievance to rescind the LOW. The Union processed the grievance according to the terms of its CBA, and the grievance was assigned to a manager not employed at the same facility as Baker for adjudication. Unfortunately for Baker, though, the Union assigned the grievance to the very same Bisbee who had sexually harassed her when they were co-workers at the Graceland-Annex facility. Bisbee decided the grievance against Baker, but the Union appealed his decision and eventually settled the grievance with the Postal Service.
Baker is now working at the Merchandise Mart postal facility, where, she alleges, management continues to harass her.
Baker filed a five-count complaint against Postmaster Marvin Runyon, supervisor Leslie Thomas, letter carrier Ronald Brignac, and supervisor Robert Bisbee alleging: (1) Runyon and Thomas were responsible for retaliating against her in violation of Title VII because she filed and won an EEO claim; (Count I) (2) Runyon and Thomas violated her rights under the Privacy Act, 5 U.S.C. §§ 552a(d)(1)-(4), (e)(2),(4),(9),(10), and (f)(1)-(4), by maintaining secret personnel files containing information about her and failing to advise her of their existence or her right to view them (Count II); (3) Thomas and Brignac violated her First Amendment right of privacy and free speech by harassing her for reporting postal staff delays of political mail (Count III); (4) Runyon and Bisbee deprived her of a fair grievance process in violation of the Due Process Clause of the Fifth Amendment (Count IV); and (5) Runyon refuses to comply with the June 14, 1994 EEOC Finding and Recommended Decision adopted by the Postal Service in its August 8, 1994 Final Agency Decision, and Baker seeks enforcement of it here pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 (Count V).
Defendants now seek dismissal of or summary judgment on Counts III, IV and V.
Since the parties have asked me to consider matters outside the pleadings it is appropriate to view defendants' motion to dismiss and/or for summary judgment as a motion for summary judgment under the Federal Rules of Civil Procedure, Rule 56(c). Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir. 1987). Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). An issue of material fact is "genuine" if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In determining the existence of any genuine issues of material fact, the court must draw all reasonable inferences in the light most favorable to the non-movant. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
A. Counts III and IV: Baker's Constitutional Claims
In Counts III and IV Baker asserts claims for violations of her First and Fifth Amendment rights, but defendants argue that this court should refuse to recognize these constitutional claims ...